Board of Zoning Appeals Meeting Minutes

17 May 2005

7:00 p.m



I.                     CALL MEETING TO ORDER


The meeting was called to order at 7:01 p.m. by Chairman David Okum.


II.                   ROLL CALL


Members Present:              Fred Borden, Robert Emerson, Jane Huber

                                              Marjorie Pollitt, James Squires, Bob Weidlich

                                              and Chairman Okum


Others Present:                   Bill McErlane, Building Official

                                              Don Shvegzda, Asst. City Engineer

                                              Ken Schneider, Law Director


III.                  PLEDGE OF ALLEGIANCE




Mr. Squires moved to approve and Mrs. Huber seconded the motion.  By voice vote, all voted aye and the Minutes were approved with seven affirmative votes.


V.                 CORRESPONDENCE


A.            Zoning Bulletin – April 10, 2005

B.            Zoning Bulletin – April 25, 2005

C.            Planning Commission Meeting Minutes – April 12, 2005


VI.               REPORTS


A.            Report on Council Activities – Jim Squires


Mr. Squires said we had the first reading on the Zoning Code changes concerning parking of commercial vehicles and the second reading will be at tomorrow night’s meeting.  Also ODOT and the City sent out surveys on the proposed walls and both resulted in the majority of the people who responded being in favor of the walls.  Hopefully Council and the administration can have ODOT come to the meeting with samples to choose from.


B.     Report on Planning Commission – David Okum


Mr. Okum reported on the May 10th meeting.  Planning granted approval of a driveway with four driveway connections at 11475 Walnut Street.  Planning considered a request for clarification of their decision concerning tree replanting at the Super 8 Motel.  451 caliper inches of trees were removed without justification.  The landscape architect recommended that 318 caliper inches could be planted and the applicant requested that 218 be planted instead and that the shortfall payment to the Urban Tree Fund be reduced or waived and that the penalty be waived.  Planning did not change the 318 caliper inches required or the contribution to make up the shortfall, but will consider the penalty amount after the planting is complete.  The renovation and addition to Ramada Plaza, 11911 Sheraton Lane was approved.




17 MAY 2005





Mr. Squires moved to reverse the agenda order and take the first item under New Business now and then review the first item under Old Business.  Mrs. Huber seconded the motion.    All voted aye, and the motion was adopted.




A.            Approval of construction of a fence in the front yard at 11750 Rose Lane.  Said variance is requested from Section 153.482(1) “No fence..shall project past the front building line…”


Kiehm Nguyen owner of 11750 Rose Lane said I don’t have any back yard and I have a one-year old who could run into the street.


Mr. McErlane reported  that the applicant is requesting a variance to erect a fence in the front yard of his property.  Because the property is located on the corner of Rose Lane and Forest Avenue, it has two front yards.  The applicant is proposing the fence to be located in both of these yards.


The property was granted variances on February 20, 1990 to construct the residence on the property with a 6’-4” rear yard.  Realistically the owner has a practical difficulty with respect to the use of his yard because he has very little rear yard.  Staff believes that relief from Forest Avenue is a reasonable request because it is a paper street and the City has no plans to improve this street in the foreseeable future.  It should be pointed out that there are non-conforming instances of existing fences as well as those that exist by variance in the neighborhood.


In addition to relief from the Forest Avenue setback, the Board needs to determine if relief from the setback from Rose Lane is warranted and to what degree.


Should the Board decide to grant a variance to allow the fence to extend to the Rose Lane right of way, the applicant should be made aware that the right of way line is 12.5’ from the street curb.


Mr. Okum opened the public hearing.  No one came forward, and he closed the public hearing.


Mr. Weidlich moved to approve the construction of the fence in the front yard at 11750 Rose Lane with the setback from Rose Lane to be 12.5 feet, with some relief from Forest Avenue and with the stipulation that it be a 48” x 8’ long Classic Gothic fence.  Mrs. Huber seconded the motion. 


Mr. Okum commented I am inclined to grant a variance on the Forest Avenue side, but I have a real problem with bringing it up to the right of way line on Rose Lane.  I would suggest to hold it back to 12 ½ feet from the Rose of Lane right of way line.  Addressing the applicant, Mr. Okum said I do understand the hardship because you do not have a back yard.  Would it be a problem for you to hold the fence back from the right of way line of Rose Lane to 12’-6”?  That would leave you a play area of 42’-6”.  Mr. Nguyen answered that it would be no problem. 


17 MAY 2005





Mrs. Pollitt moved to amend the motion to allow the fence to be 12’-6” from the Rose Lane right of way line and to stipulate that it will be a 48” x 8’ in length Classic Gothic style fence.  Mr. Squires seconded the motion.  All voted aye, and the approval was granted with seven affirmative votes.


IX.               OLD BUSINESS


A.            Administrative Appeal – Planning Commission Denial of Landscape and Driveway Plan, 12050 Princeton Pike (Staples) continued in progress April 19, 2005


Joe Trauth, Attorney representing Pat and Joe Perin, stated that they have owned and operated Perin’s Place for 17 years.


Last summer Staples came to the owners and asked to make minor modifications to the store.   The Perins agreed to minor modifications.  Essentially Staples wanted to move their entrance from the west side to the north side.


They did interior renovations and came into Planning with a plan last September requesting approval.  Planning requested that they do some landscaping and other exterior work.  They brought that to the October meeting, and the plan was approved, but the owners (the Perins) did not know what was going on.  They came in to the December and January meetings with a landscape and driveway plan that was denied  at the January meeting.   We are appealing that denial.


We have tried to work it out, and we think that we have.  We talked with Robert Lambert.  On April 19th.we suggested a very similar plan which includes landscaping and the driveway configuration, and that plan is agreeable to Staples.


The driveway entrance as reconfigured by ODOT comes in along the west side of the building with traffic calming devices and goes directly to the anchor store to the rear. 


There is a driveway along the east side that Staples would like to widen.  We had to check out the railroad easements and rights, and the railroad has some easements, but we do not think they would prevent the widening of the road because easements normally allow paving at that level.  So we would agree to allow Staples to widen the road on the east side.


The plan you are looking at shows an access road immediately to the west  and an outlet road to the east.  This is the safest method, rather than a ring road. 


Ron Roberts our engineer is here this evening; I have passed out his reported to each of you.  Tim Hershner, community planner is here as well and you also have his report. 


Robert Lambert of Staples agreed that if we had this circulation along the west side of the building along with an east side driveway that would serve their purposes as well as ours.   


17 MAY 2005





Tim Hershner said there are two primary concerns.  The first is safety.  In order to have good fire and safety access, the best plan is to have access alongside all the perimeters of the buildings.  The fire people want no more than one lane of parking immediately adjacent to the building.  While a ring road is good for certain uses, it is not for this particularly in terms of safety.


The second issue is the number of parking spaces.  This is a fairly large building and the plan presented to Planning represented only 40,000 s.f. when it is an 80,000 s.f. building.


Because of the type of stores Staples and the furniture store are, they do not need high parking counts.  The plan that was approved ignored a number of these things that would require major changes

to the site itself.  The approved plan had 244 parking spaces, but when you deduct the number of spaces in the way of HVAC or lights, the total is 204 parking spaces.


This plan provides for 264 parking spaces, and that is the second most important issue.  We want  Staples to be there for along time, but that building was designed for multiple tenants that could use the western façade as multiple store fronts.


The beauty of the plan we are proposing is that it would work long term and prevent us from coming back to Planning in the future and therefore is more viable.


Mr. Hershner showed slides of the site, stating that the differences between a ring road and access drive are interesting and are for different applications.


The ring road in Tri-County Mall works well because it is a large development.   For that development, you not only have the ring road but a storefront access drive along the perimeter as well.  Typically you do not find a  development without a storefront access drive.


When applied to this site, the ring road tends to encourage higher speed traffic going through the development.  Without the access drive, you will constantly have businesses coming back saying they need to have it because the ring road doesn’t work. 


There is a landscaped area along the western property line, but it is fairly limited, and there are electrical utility lines overhead, so I have suggested the species that do not grow 40 feet tall.


Along the eastern side of Staples there is a dumpster which we would like to have screened.   There is property on the east side and the driveway could be expanded the full length of the Staples building. 








17 MAY 2005






Ron Roberts of Roberts Engineering reported that the biggest problem with the large expanse of pavement is that the driving public is used to a ring road, and in such an area you are not expecting to see pedestrians.  In this situation you get out of your car at the anchor building and have to drive through the parking area of the adjacent building.  That is the big safety issue.


The plan approved by Planning does not provide good access for people pushing carts to the parking lot.  Not having good access and having to get out into the drive aisle will create a hazard that people are not used to seeing.


They have been in business over 16 years, and have not had any incidents.  If you have something that has functioned well for a long period of time and start to change it, you are asking for problems.  With a ring road, the speed is a problem.  With the access drive in front of the store, people are used to being cautious in that area. 


We think the original plan is by far the safer pan for the customers as well as the employees, and do not see any reason to make a change.  Our opinion is that the plan we are presenting this evening is by far the safest plan.


Mr. Trauth said on October 12th a landscape plan was not approved, but a ring road plan was approved without the knowledge of owners.  On January 11th the owner’s plan which had the roadway to the west side of the building similar to this one was denied. 


Between October 12 and today, we have met with Staples and Staples has agreed that the driveway along the west side with this crosswalk is agreeable as long as they can attempt to expand the eastern driveway. 


We are asking you to grant the appeal with the attached plan, and we would ask that the staff work with Mr. Hershner (report labeled Exhibit 1) and Mr. Roberts (report labeled Exhibit 2) to incorporate their suggestions into the final plan on the condition that Staples is permitted to widen  the east side pavement.  I think that would handle the safety issues and the parking issues and increase the well being of the overall center.


Mr. Trauth said the earlier plan that was approved was developed before we had the input of the experts here this evening and the input of Staples.  I think they realize this is much better and safer than the plan adopted on October 12th without outside expert testimony.


The main difference is every shopping center in the area has an access road in front of the storefront, and if they are large enough, they might have a ring road as well.  For a site this small, a ring road defeats its purpose and causes safety problems.






17 MAY 2005





Mr. Trauth added we have photos of different times of the day at Staples.  Typically people leave their carts in front of the store and block the access to the west and the cars. 


We have an agreement between the landlord and the tenant as we were asked to do.


Mr. Shvegzda reported that staff has not had a chance to look at Exhibits 1 or 2 so we cannot comment on that.  This is the first time we have seen any modification of that east driveway, and it seems to be a rather tight area so there might be a concern there.


From the standpoint of Planning, the safety of the pedestrians was the main concern, realizing that with the reconfiguration of the entrance of Staples, they had more area to walk and needed a safe means to get there.


Mr. Shvegzda stated basically this recreates the existing traffic conditions.  Our comment was that there needed to be something indicated on the plans to deal with the safety concerns of the pedestrians.


Mr. Trauth said we are willing to put any extra signage or speed humps if you wish.  The plan we submitted for our appeal is essentially that plan, but we are willing to allow Staples to widen   that pavement.


Mr. Okum asked if this was the Delhi plan that was originally submitted and Mr. Trauth answered that it is the Delhi landscape, but we are wiling to work with staff to make any conditional changes to it, like traffic calming devices or signage.   There are not that many trucks that come in and out to Staples, but we are talking about making the road a one way in, not a two-way.


Mr. Trauth said Planning approved the plan without expert testimony.  The other change is we have an agreement between the owner of the property and Staples.  We are saying that now all those parties are in agreement, we would ask you to adopt this, with the condition that staff would work on it with Mr. Hershner and Mr. Roberts.


Mr. Okum asked if the life and safety issues were reviewed.  Mr. McErlane reported that we touched bases with the fire department, and they were not concerned with getting access to the building; they would have no concerns about attacking a fire in this building. 


Mr. Okum asked Mr. Shvegzda if he had identified any life or safety issues.  Mr. Shvegzda responded none that I can recollect.  I hard heard discussions on the increased speed in terms of a ring road being remote from the building.  As far as the other issues addressed tonight, they need to do a better job of collecting shopping carts.


Mr. Trauth said CDS Engineers approved the original plan with the road in front of the side of the store and it has worked safely for 17 years.


17 MAY 2005





Mr. Okum said you indicated that the former Rhodes building was 80,000 s.f.  How many trip generations would that be?  Mr. Roberts answered it would depend on the uses.  If it would be like Staples, there would not be a lot of trip generation.  If it would be a restaurant, there would be more trips.  If it were a furniture store or a Home Depot there would not be much trip generation.  However if it were office space, that would have a major impact on traffic.  In the past it was used as Service Merchandise, and those type stores are not heavy generators.


Mr. Okum said Mr. and Mrs. Perin developed the building for multiple users, so we are sitting with an 80,000 s.f. empty box.


Mr. Trauth reported that Staples’ lease is for another five years with options and prohibits heavy generators.  He read from the lease the uses that are prohibited:


“(i) tanning, health, exercise or racquet club or spa, gymnasium, bowling alley, skating rink or other sports or recreational facility; (ii) school, library, reading room or house of worship; (iii) movie theatre, gallery, auditorium, meeting hall, hotel or motor inn, or any residential use; (iv) massage parlor, adult bookstore, a so-called “head” shop, off-track betting, gambling, gaming, or check cashing facility; (v) car wash, automobile repair work or automotive service, automobile body shop, automobile, boat, trailer or truck leasing or sales, or Laundromat; (vi) tavern, bar, amusement park, carnival, banquette facility, dance hall, disco, nightclub, or other entertainment facility including video game, virtual reality or laser tag room or facility, pool hall, arcade, indoor children’s recreational facility or other amusement center; (vii) any manufacturing warehouse or office use (except incidental to a retail operation); (viii) funeral parlor, animal raising or storage (except incidental to a  full-line retail pet supply operation), pawn shop, flea market or swap meet, junk yard; (ix) drilling for and/or removal of subsurface substances, dumping, disposal incineration or reduction of garbage or refuse, other than in enclosed receptacles intended for such purposes; or (x) any use which constitutes a public or private nuisance or produces objectionable noise or vibration.  In addition, no part of the Center within 300 feet of the leased premises shall be used for a restaurant or any other use which would place an undue burden on parking.”


Mr. Okum asked what type of uses could go into a General Business District.  Mr. McErlane reported that it could be any type of retail, customer service, business restaurant, or hotels, but one of the main factors would be parking ratios.  There would not be enough parking for a hotel.  Mr. Okum wondered if offices could go there and Mr. McErlane said they could, but the problem would be the parking.


Mr. Borden asked if they were saying that office space could not go onto that site and Mr. Okum said not necessarily; the problem would be the parking.  Mr. Borden asked if it were substantially possible with the existing parking field, and Mr. McErlane reported that 400 parking spaces would be needed for the Rhodes building if it was converted to an office building.


17 MAY 2005





Mr. McErlane reported that the plan approved by Planning Commission shows 258 parking spaces but it doesn’t take into consideration the mechanical equipment.   Also, the Staples landscape plan doesn’t show the dumpster, which would impact at least one parking space.


Mr. Hershner said this type of roadway (a ring road) needs traffic calming measures.  There are a number of issues that we can work out with your staff, a host of things that you would have to add to it to make sure that it serves the site properly. 


I believe this is a plan that could live on past Staples.  What Planning offers in moving the road out has merit, but it has problems for the entire site.    We have a major tenant building to the south (former Rhodes) and it is important to create a site plan that makes this site work at a peak and safe level.


Mrs. Pollitt said to be clear, we are looking at the Delhi landscape plan which was submitted February 17, 2005.  Was this plan before Planning Commission?  Mr. Okum answered that it was, as a landscape plan.  Mrs. Pollitt wondered how it differed from the Target plan.  Mr. Okum reported that there is no difference, but Target is a single user on a single site. 


Mr. Hershner said if you put specific conditions on any approval you might grant, you might find they are not practical and would tie your staff’s hands.  From the outset the problem was that Staples had somebody out west drawing plans; they probably did not visit the site and did not see all the issues I saw when I visited it. 


Mrs. Pollitt said if I were in one of the parking spaces in front of the store and wanted to exit the property, would I have to come back over to the western side of the lot or could I get out on the eastern side?   I would think it would be safer to exit on the eastern side.


Mr. Hershner said typically you would have a 24 foot wide driveway for two-lane traffic, especially with trucks.  That has worked well in allowing the service vehicles to come and go and it has not restricted the customers.  If they want to go that way they can, but it does not encourage them to do so.  That is why the parking goes all the way up to the retaining wall.  When you get to the southwestern edge of the furniture stores, it has a lane that tells the trucks not to enter, so that they do not conflict with the customers’ vehicles.  It suggests that, but does not require it.


Mr. Borden said for clarification, what was Planning Commission’s objection to the Delhi plan?  Mr. Okum answered it was the landscape plan, not a site plan for traffic.  It clearly was not done by a traffic engineer.  It was a combination of landscape and site plan showing the roadway, but it showed no directional delineation. 


There was give and take with the applicant about moving the front of the building from the west to the north side, and Planning was concerned about how that west side was depicted.  They were concerned about the number of people parking in the field across the road from the 80,000 s.f. building


17 MAY 2005





Mr. Trauth said as far as I could determine, every other shopping center in the area has access in front of the building, and that is how we think this center should be.  It has worked that way, it is safe and the tenants and owners have agreed on this.


Mr. Okum said I cannot speak for other Planning Commission members, but I cannot say that I was looking at this as anything other than an alternate plan which had gone in a completely opposite direction from what Planning had approved.


Mr. Squires said to clarify, this Delhi plan dated February 17, 2005 is a landscape plan and a site plan that addresses the issues that you have brought up this evening.  This is the plan you are asking us to consider.


Mr. Trauth answered yes, except conditions can be added to that if the board wishes.


Mr. Squires said I also have a Staples plan.  Mr. Trauth reported that this was approved by Planning on October 12, 2004 and it was only the driveway plan that was approved. 


Mr. Schneider reported that basically they are asking for an appeal with conditions, and this board can grant an appeal with conditions.  The conditions are whatever you choose to make them.  One of the conditions could be that the two reports submitted this evening now shall be reviewed by staff,  and whatever staff might choose as necessary to be incorporated and make it an acceptable plan.  The board can make a motion to do that, grant the appeal with a list of conditions.


Mr. Okum said if this motion is made, Planning has not reviewed the final landscape plan.  Would this go back to Planning for review?

Mr. McErlane said staff reviewed the landscape plan presented in January, and this is not too dissimilar, and the city planner did not have issues with it.


Mr. Okum wondered if it would be appropriate for the engineer to review this and give his comments.  Mr. Schneider said some things have been done, but the engineer has indicated that he would like to have the opportunity to review tonight’s proposals.  If you want to grant this approval, one of the conditions might be to include the review by staff   to give us substantial latitude for input.


Mr. Shvegzda agreed adding that items such as pedestrian safety and signage, pavement markings, traffic calming devices, and the width of the street are all important.


Mr. Okum commented the applicant has indicated an expansion of the eastern driveway.  Should the board set a minimum drive aisle width?  Mr. Shvegzda answered the only issue would be that we do mot know about the ring road and if they could pave into it.





17 MAY 2005





Mr. Schneider said if it is left with the condition that it is dependent on the engineer and building official’s approval, we could work with them and come out the way we wanted it.


Mr. McErlane added that some of the things that need to be reviewed by staff deal with details that are missing, like the parking stall dimensions, parking aisle widths and dumpster enclosures.


Mr. Squires moved to grant approval of the Delhi site/landscaping plan submitted on February 17, 2005 with the conditions that our engineer and staff be consulted as to any final stipulations.


Mr. Schneider added they should not only be consulted, but it should be discussed with the staff and engineer and not approved without their input.  Mr. Squires amended his motion to read that it should be “conditioned upon the approval of the staff, engineer and city planner.


Mr. Borden said if the outcome of the staff review is to not approve, what is the next step?  Mr. Schneider responded I don’t think it will come to be since the applicant wants to work and resolve this, but if it is not approved, they have the right to appeal to the court.


Mr. Squires asked Mr. Trauth if he had any comments on the motion.  Mr. Trauth said I think it is perfectly reasonable.  You are approving the essence of the plan, and they will work out the details.


Mr. Okum said my understanding is that the eastern side driveway widening is a requirement of this motion.  Mr. Trauth responded we are willing to do it if we can and if staff wants us to do it and Staples has agreed.


Mr. Schneider commented these are details for the staff and engineer.


On the motion to approve, there were six affirmative votes.  Mr. Okum voted no, and the approval was granted.


X.                 DISCUSSION


XI.               ADJOURNMENT


Mr. Squires moved to adjourn and Mr. Borden seconded the motion.  All voted aye, and the Board of Zoning Appeals adjourned at 9:11 p.m.


                                                                      Respectfully submitted,




_________________________,2005    __________________________

                                                                      David Okum, Chairman




__________________________,2005 __________________________

                                                                      Jane Huber, Secretary