REGULAR MEETING OF THE EATON PLANNING
ZONING AND BUILDING BOARD ON SEPTEMBER 13, 2005
AT 7:00 P.M., IN COUNCIL CHAMBERS
The Eaton Planning, Zoning and Building Board met in regular session in Council Chambers on Tuesday, September 13, 2005, at 7:00 p.m.
The roll was called and the following were found to be:
Present: Ron Coleman
Stanley Spencer
Steve Deffner
Gary Wagner
Tom Jordan
Absent: Harold Geeting
Tim Lane
Also in attendance were City Engineer Joe Ferriell, and Law Director Donnette Fisher. The meeting was called to order at 7:00 p.m.
MINUTES:
The minutes of the August 9, 2005 meeting were read. A motion to approve the minutes as corrected was made by Gary Wagner and was seconded by Steve Deffner. The motion passed as follows:
Ayes: Deffner, Wagner, Jordan (3)
Nays: None
Abstain: Coleman, Spencer (2)
SWEARING IN:
All members of the audience anticipating to testify before the Board were asked to stand and be sworn in. The Secretary administered the oath or affirmation to the audience.
Z-05-07 - Public Hearing - Zoning Amendment - 1st Liberty Mortgage, Inc.-1600 North Barron Street:
Jordan: The applicant has applied for a zoning amendment to rezone lot 1691, located at 1600 North Barron Street, from ‘R-1A’ (One-Family Residential) to ‘C-3’ (Community Commercial). This is the first residential lot to the south of Fifth Third. The proposed use is a mortgage broker’s firm. As this is a Public Hearing, at this time I will open the Public Hearing and whoever would like to represent this request step forward and state your name and address for the record.
Earley: Mr. Chairman, my name is Jake Earley, I am an attorney of Law in Eaton, and I represent Mr. & Mrs. Melling, who own 1st Liberty Mortgage.
You each have a package and I presume that you have been through it. The application is to secure a ‘C-3’ zoning change for a ‘R-1A’ lot. The reason for that is obviously set forth in the permitted uses in the ‘C-3’ district. Mr. Melling has a mortgage brokerage firm, he has an Ohio license, and he has an Indiana license. You see in your packet pictures of his facilities in Indiana and how well they are maintained. Many of you know where he lives out on Lani Drive and that is also well maintained. When we looked at the site and what could be done with it, ‘C-3’ was the only possibility because what he intends to do is to open a professional business office in that location. When he is open, his hours would be 9:00 in the morning to 5:00 in the afternoon, Monday thru Friday. He would be there other times by specific appointment if people who would want to make applications could not otherwise get there. The tract is adjacent to the Fifth Third tract, which is zoned ‘C-3’ and it is across the street from the Marathon Station, which is zoned ‘C-1’ and also the Eaton Center, which is zoned ‘C-3.’ As you know, the character of North Barron Street has significantly changed and there was no one in this room that was more opposed to that change than I was, but it has happened, so now let’s live with it. We can’t change what the Federal Court did to us and I am suggesting to you that maybe it is time to move on and make the best of what we can make of the area that we have to deal with. Mr. Melling purchased this property at a foreclosure sale. I don’t know how many of you noticed that property over the last year-and-a-half, the City must have mowed it $700.00 worth, I saw on the tax duplicate. Obviously it was not being maintained. It is run down and needs a new roof, needs new windows, needs siding, all of which the Mellings intend to do to it if they are permitted to put their business in that location. Since they bought it at a foreclosure sale, even though they yet don’t have the deed, because the attorney at the foreclosure hadn’t gotten around to confirming his sale yet, Mrs. Melling has been mowing it and it looks a lot better. That is the way they intend to keep it. They are one of a select few people in the town who are local people, who want to own their own business. You heard last month from the Hakes, another local person that wants to own their own business because you would say, “Why don’t you put it in the Eaton Center.” Who runs the Eaton Center, Durbin runs the Eaton Center. Who controls it, Durbin controls it. Who fixes it up, Durbin fixes it up when they feel like it. We have local people who want to have their own business, in their own community, spend their own money to fix the place that they want to be proud of and occupy and use. Creating employment, at least in Mr. Melling’s case, because he would have no more than three, generally two, people in the firm there. The problem you have, as I read your minutes last month, which perplexed me a little because I wasn’t too sure after I read them that I even wanted to come here tonight. I thought maybe you decided my case last month. It looked to me like, what your position was, that if the Comprehensive Development Plan doesn’t say it can go there then we aren’t going to move, we aren’t going to change. I would suggest to you that it is called a Plan. Plans are always subject to change. You have to think outside of the box, you have to think what is going to happen on North Barron Street. Here is a possibility with Mellings and I think you had one with the Hakes and the Hamms, where you can give local people an opportunity to put a low-density, professional business in that location. That is what I am going to suggest to you tonight, this is the step to do so. It would be a good buffer between the ‘C-3’ and the rest of the residential neighborhood. You can’t sit there and tell me that there is not commercial up there and there is not going to be more, because you even acknowledged it last month where you said maybe in the future, five or ten years from now, we are going to be changing that. Well, I am going to tell you that if you don’t start thinking about it now you are going to see deterioration. This place that Mellings bought sat vacant for over a year-and-a-half and it was going down. If the City hadn’t mowed it, it looked terrible. Hamms property, been for sale for a year, Rick? No offers. Why, because it needs to have a commercial use, the same with this property. I understand your perplexity with what to do with this. What do we do, we zone this for Mellings and then maybe a bar can come in. I am just suggesting to you to do the math, if the bar is in there they can’t have more than 10 customers, because they couldn’t have more than 10 parking spaces. A restaurant, you ever hear of a restaurant with 10 parking spaces? Possibly you could demolish the building and have a postage stamp restaurant or drive through and maybe that would work. If that is your hang-up, then I would suggest to you that maybe the Law Director and I get together and see if we can’t work out a situation that puts a covenant on that property. Mellings get it, Mellings convey it to a ‘straw man,’ the ‘straw man’ conveys it back with a restriction that it can only be used for residential or mortgage brokerage firm. Anything else would be a violation of the covenant and you could enforce it. There would be no other change allowed in use if it didn’t come back before the City. I gave you a rendition of what I thought the Comprehensive Development Plan was in my answer to question 12 and I hope you had time to read that. My thought is that you have to start being flexible if you are going to see organized, controlled growth in the City of Eaton in the area of North Barron Street. Our request is low-density, there is not going to be anyone there after 5:00 p.m., unless they are there for a specific purpose, the entrance would be on-and-off of Fudge Avenue not North Barron Street. I think it is time you use a little vision. Let’s start now in the orderly, correct development of North Barron Street. If you have any questions you would like to ask me or Mr. & Mrs. Melling, but we would be happy to try and to answer them.
Jordan: Before you go much further Mr. Earley, I would like to ask Donnette. Mr. Earley stated that they do not have a deed for the property, can we rezone something that they do not own?
Earley: It can be done conditioned upon us getting the deed, it has been done before.
Fisher: They have bought it at the foreclosure sale?
Earley: I have the paper work to show that.
Jordan: I know we have got into this before and I just wanted to make sure we were correct before we go forward.
Fisher: They are just waiting for confirmation from the court?
Jordan: That is fine, I just wanted to make sure we were okay.
Fisher: I am assuming the Sheriff’s Office did take their money?
Earley: Yes, the 10% down has been paid.
Jordan: That is fine. I read through your narrative and on question 12 I did have a question for you. You do state the current Comprehensive Plan recommends that the Green Acres Planning Area remains Suburban Residential. Are you basically saying that you think there might be an error in the Comp Plan in that area?
Earley: No, I am not sure whether the Black Subdivision, the Black-Fudge Subdivision is part of the Green Acres Planning Area. I didn’t see any designation in my Comprehensive Plan.
Fisher: Did you look at map 15?
Earley: Yes. One is on one side of the street and one is on the other. We argued that with the Wal-Mart situation. You have development on the West side, you don’t have development on the East side. It didn’t seem to make a whole lot of difference. Here I would like to argue that we have development on the East side so lets continue it.
Wagner: The Comp Plan was completed in 2002, 2003 basically. Those people that planned it, worked on the Comp Plan, knew at that time, I believe, that the Wal-Mart development was going to happen and they determined in the Comprehensive Plan that those areas just south of Wendy’s and south of the Fifth Third, were to remain Suburban Residential. I guess I need to know why you believe that we should change that. Just because there is commercial development up there?
Earley: First of all, I don’t have a copy of the Federal Court Order but this is dated April 7th and I don’t believe that the Federal Court Order was in place until after that, was it?
Fisher: The Federal Court Order was in March.
Earley: I am going to answer you, Mr. Wagner, and say that I presume they had knowledge of what was going to happen and why do I think it is wrong? I think that you are going to have development on North Barron Street. I don’t think there is any way around it. If you recall the Dayton Mall area, across the street from the Mall there was a variety of houses along there and ten to fifteen years ago they started looking pretty trashy. If you go through and look at them now there are lawyer’s offices, doctor’s offices, insurance offices and those properties look good and I think that is what I see for the North Barron Street area. I see professional businesses, professional services in those areas with low-density use in developed properties, well-maintained properties and hopefully occupied by our residents.
Spencer: I would tend to agree with that for one reason, they front on Barron Street. You talk about subdivision, the one on Rhemert Drive that goes back there by Romadoor, that property still will face Barron Street and to me that would be a part of the commercial area because it is on Barron Street. The same with Mellings’ property, it is easier to come in on the side. The subdivision part of it is (not audible) I would tend to agree with you that commercial is on Barron Street. In fact I would question why a residential property sits right out there next to a Bank and across from Beoddy’s, on the same street.
Earley: Except that they were there first.
Spencer: If you go back on Fudge Avenue, if you go back on Romadoor, it is a different story. Being on Barron Street I think makes a difference here.
Wagner: Stanley, are you saying that maybe there is an error in our zoning?
Spencer: I would question whether that particular reasoning there on Barron Street, you have to also be reasonable and the reflection and the change that has taken place there.
Earley: Again, Mr. Wagner, my thought is, is that it is called a Plan. A Plan shifts with the wind, they shift with the circumstances. If it were not flexible it would be the Comprehensive Law and then it would be fixed, but it is a Plan and I think the Plan has to move with the times. You have more and more development, obviously, up and down Barron Street and I think it is going to continue. You have clear up in the north end the United Way/Red Cross, they are going in there doing some paving. They are moving their office from downtown to up there. Some of the properties next go Arby’s are rezoned. There have been areas in and around that North Barron Street area that are starting to move with what I think will be a change in the area. Your amendment section 1135 says “there is a manifest error in the original Zoning Code text and/or designations on the Official Zoning District Map.” Well, I think maybe that is really a misstatement. I don’t know whether there was an error, I doubt that there was an error when they adopted that, but the way it is stated it doesn’t allow for any flexibility. “The change is in accordance with, or in more appropriate conformity to, any existing land use plans for the area under consideration.” Obviously, none of those buildings were in place in April of 2003. They got built afterwards. We have seen a great influx in traffic, we have seen a use up there and there are still more buildings. What are they building now, a drive through car wash? There is apparently going to be another building going up rather quickly, and I am not sure what that is.
Fisher: Skyline Chili.
Wagner: All of those developments were planned developments for that Special Planning District weren’t they?
Earley: No, they are ordered developments, they are ordered by the Federal Court.
Wagner: In our Comprehensive Plan they were designated in a Special Planning Area at that point in time and I guess the Special Planning Area was what was taking place with the Court System at that time.
Fisher: They are commercial, they are fine.
Wagner: In the Comp Plan they were not commercial.
Fisher: Yes.
Wagner: I see them as, Special Planning Area, is that commercial?
Jordan: Does anyone else wish to address this Public Hearing at this time? If not I will close the Public Hearing and turn it over to the Board for consideration.
Spencer: I think as a person who has watched that develop throughout my lifetime, all the way through that area, the last ten years it has just changed dramatically, all those things that are taking place and are going through there. Maybe it is just me, but it is reasonable to me that something that fronts Barron Street, if everything else is going along with commercial development, to me leaving that as a residential area would be (not audible) I think you would want to make that just like Fifth Third Bank next door and across the street. You get to the next block south of there and it is a different story.
You have the Wal-Mart development and this is just one corner of that area, in my estimation. To me it makes sense to make it a commercial property. In looking up the development plan and those things, that is why it makes more sense to make that a commercial property.
Coleman: This is the only house we have seen that is empty. All the others people are living in them and they are all private homes and I don’t think we should make a decision here for the people that are living there, that is what we are going to do. Some of them will hold out. We seen one of them down by Bank One and she is still holding out down there and that is all commercial, everything but that one house. What do we do about the people? That is what we are here for, the City is for the people.
Wagner: Are you saying to provide them residential?
Coleman: I would like to see the people come to us and say, “We are ready to make this commercial,” all of Barron Street, from Millers on up. I would like to see the people come to us and tell us that and then we can do it all at one time. Not here a spot, there a spot.
Wagner: The only difference I see here between last month’s case with the Hamms, is the fact that this is a corner lot. That is the only difference that I see. However, I still go back to the Plan to remain Suburban Residential. Stanley’s opinion here, I don’t know how Stanley would have approached the Hamm issue last month, it would have been very interesting because it is not a corner lot and it sits next to a commercial business. I just can’t get off of the Plan. I think when the Plan was developed in 2003, it is only just a little over two years old, it was developed with that in mind, that the commercial north of this lot we are talking about, was going to happen. Those people decided that they wanted to leave those properties Suburban Residential and I have no reason to change that.
Jordan: I have to kind of agree with Stan, each issue is based on its own. This is a corner lot and is stuck there by itself. We have been referring to the Wal-Mart development, we promised the residents along that street that we would protect them from any further development and I think this is the safest and proper way to protect them from not becoming strictly a ‘C-1’ area. If it was on further south, personally I wouldn’t be in favor of it, but we are talking about one lot by itself, next to commercial, ‘C-1.’ ‘C-3’ seems to be a nice buffer zone for those residents along Fudge Avenue. There is a difference between last month and this month. It is a corner lot, one individual lot, it is not a complete two-block area that we are considering. We are considering one lame duck lot.
Wagner: Last month we were just considering one lot. I know that this is a corner lot and it does make a difference, but it doesn’t make that much difference in my mind at this point. In the new code ‘C-3’ goes to ‘C-2’?
Fisher: Yes.
Wagner: Are some of the permitted businesses in ‘C-3’ will be conditional?
Fisher: Yes. Many of the ones that were more troublesome, the restaurants, bars they will be becoming conditional uses in the new code. The intensity of the uses that are going to be allowed in Community Commercial in the new code is very low.
Wagner: Will ‘C-3’ zoning automatically, everybody that is ‘C-3’ currently, will they go to ‘C-2’, there is no grandfathering?
Fisher: If you already have a use on your site, say ‘C-3’ and you already have a bar, you will be allowed to continue that bar, but say you were ‘C-3’ and you had a barbershop, you would not be allowed to convert that into a restaurant simply because that was allowed under the old code.
One thing that I heard last month and I am only bringing it up to get it on the record, one of the concerns that I heard from you last month on the home across the street, on Barron Street, was the access directly onto North Barron. I know that is one of the things you have looked at as more things develop, trying to limit the curb cuts directly onto North Barron. That is why with the development in front of Wal-Mart, no direct access onto North Barron was allowed. When HIT was put in, they were told that when those properties develop an access drive would have to be put in. I would note that this has no North Barron access.
Wagner: I didn’t bring it up because there is no North Barron access. I did have some concerns about parking, but I think they have plenty of space there. The only thing that bothers me, again, that was like last month, it does comply with much of anything except for (b) and (c). There is no requirement for additional land area for that particular zoning district. There are plenty of spaces available in ‘C-3’ with out rezoning that.
Spencer: Do you have that letter of support?
Jordan: Stan did receive a letter in the mail and I will read it:
September 12, 2005
To: Eaton Planning, Zoning and Building Board
We the undersigned adjacent property owners approve of the zoning amendment application by 1st Liberty Mortgage to re-zone lot 1691, located at 1600 North Barron Street from ‘R-1A’ one family residential to ‘C-3’ community commercial.
There won’t be a lot of noise, people, cars or late night happenings. The Mellings have already started improvements and upkeep to the property. Their building style will blend in well with the neighborhood.
From Five Points to North City Limits there is no rhyme or reason to the zoning. You have homes or a home then a set of commercial buildings. This application fits in perfect with adjacent properties.
Thank you for your consideration.
Robert and Loretta Turpin
1540 North Barron Street
Eaton, Ohio 45320
Margaret Sullivan
104 Fudge Avenue
Eaton, Ohio 45320
Wagner: One other concern that I have and maybe Jake can address this, with the property owner to the east of them in agreement with what is taking place and the property owner across the street, you mentioned a covenant. My concern is that if the property owner behind this lot, say the mortgage business doesn’t work and they vacate and the property there decides they want to sell their property and makes that a big, big corner lot for a business that would be applicable for ‘C-3,’ that is one of my concerns.
Earley: We can address that two different ways. If I understood Ms. Fisher correctly, when the new code comes into effect and if we are in there as occupational or professional office then we get that designation and we cannot change that designation unless we come back before the Board for other approval.
Fisher: You could change it to one of the other permitted uses. Permitted uses in the new ‘C-3’ will be Business Professional, Food Service/Catering, Health and Personal Care, Medical and Health Related Offices, Personal Service, and Skilled Nursing Facility.
Earley: All of which would be, I would think, low-density. The other thing that I suggested is that once Mellings get title to the property we could convey it out to a straw person, you or anybody, and work out the restricted covenants with the City so that it could be conveyed back to Mellings with the restriction that it can only be used for residential use or a mortgage brokerage firm and that any other change in use has to come back before the Board.
Fisher: I would just recommend that if any of you are thinking of making a motion to approve and you want the covenant, make sure you make that part of the motion.
Wagner: I will make a motion to deny the application because it does not meet all the applicable standards in Chapter 1135.01 in that there is no legitimate requirement for additional land area for that particular zoning district.
Jordan: I have a motion to deny the application based on that there is no legitimate requirement for additional for that particular zoning district, do I have a second. The motion was seconded by Steve Deffner. The motion to deny passed as follows:
Ayes: Coleman, Deffner, Wagner
Nays: Spencer, Jordan
Jordan: There has been an unfavorable recommendation to Council. It will be heard at Council in October.
Z-05-08 - Public Hearing - Zoning Upon Annexation - Hake/Grandview Hospital:
Jordan: Per Section 1137.04, when County-zoned land is annexed to the City, that land comes into the City zoned in the same zoning district as the City-owned land that is adjacent. In this case, the land annexed is the Hake property, which lies to the north of the Preble County YMCA property. The annexation of this land became effective on August 17, 2005, and the land came into the City zoned ‘P-1,’ as that is what the adjacent YMCA tract is zoned. Per Section 1137.04, Planning Board must recommend the appropriate permanent zoning districts to Council for areas that have been annexed to the City, within three months after the effective date of the annexation.
Grandview Hospital, which is purchasing this tract from the Hakes, would like to see this property stay ‘P-1.’ It is staff’s recommendation that ‘P-1’ be assigned as the permanent zoning district for this tract.
This is again once more a Public Hearing and I will open the Hearing.
Fisher: You know that this is assignment of zoning upon annexation so there really is no applicant.
Jordan: What we have here is that the City has agreed to annex the property north of the YMCA currently and we need to assign a zoning district to that. Our duty tonight is to assign permanent zoning. Somebody wishes to address the Board.
Simmons: I am Lois Simmons and we are property owners of a home on Eaton Gettysburg Road, which is adjacent to the land that is being zoned. We have no objections or complaints at this time, however we would like the Board to know that we, along with our neighbors on Eaton Gettysburg Road, are very interested in how this land is developed. It is our understanding that the letter we wrote to the Mayor and Council, dated July 2, 2005 which expressed some of our concerns, has been passed on to this Board and we would appreciate our concerns being passed on to the developer. We would also appreciate it if this Board would help protect our property as the land is being developed and also hopefully give us an opportunity to have some input in the design process.
Jordan: The letter has been received in our packets.
Simmons: Thank you.
Jordan: Any one else that would like to address this Board on that? If not I will close the Public Hearing and turn it over for the Board’s review. Joe I will ask you to highlight what is going on here.
Ferriell: The present zoning is County zoned agricultural and they are requesting ‘P-1’ professional service. In Chapter 1152, ‘P-1’ is to provide for professional, institutional, community and limited commercial uses outside the Central Business District. All such districts should be a 10-acre minimum in size.
One thing I wanted to point out to you on the sheet you got, last paragraph which says the south part of the planning area should be developed as Commercial and Office that is not part of it.
Fisher: The North Fringe Planning Area, I was reading the Northeast Fringe, the North Fringe said, “This area is within unincorporated Washington Township property currently unimproved should remain unimproved with agricultural uses as needed. The North Gateway Corridor Special Planning Area overlays a part of this planning area.”
Coleman: Joe, what do you know about that designated right-of-way area?
Ferriell: Donnette, do you know about that designated right-of-way area?
Fisher: Which one?
Ferriell: The one coming out onto Eaton Gettysburg Road, 60 ft. wide.
Fisher: It is a dedicated right-of-way.
Ferriell: Right. I believe what they indicated when they were here was that it was mainly for utilities.
Fisher: The hospital did indicate that if they ever built anything they would not use that as an access point.
Coleman: Would it be asphalt?
Ferriell: No.
Fisher: Can’t say never, at some point it could be, but they plan to use Preble Drive as the main access to the site. They have an agreement with the Board of County Commissioners and with the Church of the Nazarene they will be dedicating land for an extension of Preble Drive. Preble Drive will extend up to that lot.
Spencer: How wide is that right-of-way?
Ferriell: 60 feet.
Spencer: Is that just north of Chownings’ place?
Hake: It is up one more house.
Fisher: When that lot was first created it was probably dedicated with the thought that there would be future residential development in the back and they would need a road opening.
Simmons: I just wanted to share that at the first meeting, there were two individuals that indicated that the right-of-way might be used to provide for emergency access in the future. They specifically said, “emergency access.” We don’t know what that means, if it means sirens going past the home or if it just means some kind of right-of-way in the event of a building on fire or that type of thing. Just wanted to share that.
Spencer: You would think if they were getting the right-of-way coming from Preble Drive and behind there, they wouldn’t need this extra entrance.
Fisher: It is my understanding that if they build something it is going to be close to Preble Drive. That is where they are going to run the water and sewer. You are not going to run it all the way out, along and then back up the right-of-way. It would make sense that you would build your building close to where your water and sewer are. I don’t know why they would build a driveway all the way across to the back of the property.
Jordan: A lot of the things I was looking at in the letter that was presented to us by the Simmons, we are doing the annexation tonight and a lot of these are covered under the actual development of the site after it is annexed and assigned zoning. To answer your question Mrs. Simmons, about the emergency access, we have those right now in town at Greenbrier, instead of coming off of Lexington Road they have an emergency entrance off of Park Avenue that is gated. That may be what they have intentions for, it gives them two ways in. A lot of the questions are covered under the Zoning Code currently and the new Zoning Code where the green space is to be provided in developments and it is covered under Development Standards. You have a good list and have done your homework but I think we have them all covered in the Zoning Code.
Coleman: I move for favorable approval of Z-05-08. It was seconded by Stanley Spencer. The motion passed as follows:
Ayes: Coleman, Spencer, Deffner, Wagner, Jordan (5)
Nays: None
AB-05-16 - Variance - Lori & Jeff Dunham - 320-322 Gilmore Street:
Jordan: The applicant is requesting a ten-foot variance from the City’s ‘R-3’ rear yard setback requirements for the lot located at the southeast corner of Gilmore Avenue and East High Street. The applicant wants to build a new duplex on this vacant lot. Who will be representing this application tonight?
Christman: I am Dean Christman and I am representing my daughter Lori Dunham.
Jordan: What are you wanting to do up there?
Christman: We need a five-foot variance on the south side of the proposed building. I think you, I don’t know if you have the building or not. I was told that if we moved it one foot north we would only need a four-foot variance, it was drawn up on the site plan as five-foot on the south side. We are off of the sewer right-of-way there. I think there is a fifteen-foot and we will be off of that by a foot or two.
Wagner: Can you tell me sir, this is High Street here, and the house will be facing Gilmore?
Christman: The house will face Gilmore.
Jordan: Joe, is he requesting a setback?
Christman: The rear setback, the building people are calling that. Which is actually the south side, since, I guess the lot was originally intended to be facing North, High Street, but since the lot is a little deeper than the adjourning lots, we wanted to turn it so we could get a little bit larger building on that lot.
Ferriell: Since it is a corner lot there is basically two
front yards, one on
Gilmore and one on High. Definition of a “rear yard,” page 38, the rear yard
will be the yard opposite the narrow street frontage, therefore E. High would
be the narrow front yard. Therefore we need a rear setback of 30-feet.
Jordan: He is required 30-feet and is requesting 20-feet. He mentioned four not five and I wondered where we were going to get that.
Fisher: Per the Zoning Code when it is a corner lot, you take the frontage with the least, the smallest, which in this case would be East High Street, and the yard opposite of that is the rear yard. You got two front yards, East High and Gilmore, the rear yard would be opposite East High and the side yard is opposite Gilmore.
Wagner: So the side yard is the south yard?
Jordan: Basically.
Christman: It was confusing to me.
Fisher: The side yard is the east yard.
Wagner: He is requesting five-foot variance, then?
Fisher: He is requesting a ten-foot variance on the south, which is the rear.
Christman: I was told it was a five-foot variance.
Fisher: Yes, you have twenty marked and he needs thirty. He is okay on both fronts and if you will note the one on the north he has noted as twenty-two, but he didn’t measure all the way out to the right of way, which is an additional three feet, which gives him twenty- five. He is okay on the High Street side, he has twenty-five on the Gilmore side, so he is okay, he has plenty on the side setback, he has thirteen there so he is okay. The problem is that rear yard, the south yard, he has it marked twenty and he has to have thirty.
Wagner: With the way the house is constructed it becomes the side yard?
Christman: Yes.
Fisher: Per the Zoning Code that is the rear yard.
Jordan: It is going to look like a side yard, but per the Zoning Code it is the side yard.
Wagner: The new Zoning Code, how does it address this?
Jordan: The same thing.
Fisher: When you have a corner lot, you have two front yards, one side yard and one rear yard.
Wagner: When he builds the house doesn’t it becomes the side yard? I know what you are saying.
Fisher: I know what you are saying. It is hard to understand.
Jordan: Basically, what we are doing, we are wanting to grant a variance so the applicant can put a new home, on a vacant lot, in a old substandard lot, in my opinion. As we go down through our conditions, it is not going to constitute a zoning change, it is not going to be injurious to the neighborhood, it is going to be a new structure along with the others already on East High Street that the Morrows built several years ago, special circumstances or conditions are that it is a corner lot in an old neighborhood.
Spencer: When I look at the picture, you are facing Gilmore Street when you build that so the side of your house will be out towards High Street. Will that be set back in line with the other three that are there?
Christman: I think so. The setback is 22-feet.
Fisher: You are actually 23-feet.
Spencer: So he is comparable with the others that are already there?
Fisher: He has this marked as twenty-two, you should have measured it all the way to the sidewalk, which actually gives you another three feet so you have twenty-five on that.
Christman: So I should move the building?
Fisher: You have twenty-five here, twenty-five here and thirteen here.
Christman: I could slide the building?
Fisher: No, you are required twenty-five and you just make it.
Wagner: Are the garages on Gilmore, are they out front?
Christman: The garages on the front of the house will face Gilmore.
Wagner: You have no room to move the house north at all?
Fisher: No. You could fit a single family dwelling on this lot and meet setbacks without a problem, you could fit a smaller two family dwelling on this lot and that probably would not be a problem, but with this size duplex, you cannot put it on this lot and meet setbacks.
Wagner: So really when you look at the applicable standards his problem is self-created because the building is too large for the lot.
Fisher: Like the Napier case we had several months ago.
Wagner: If he were to knock five-feet off of each one of those sides off he would be able to put it there without a variance, right?
Fisher: If it were a smaller building it would fit on there.
Wagner: I guess, why did you pick this size of building?
Christman: We looked at about 5000 plans and my daughter is going to live on one side and we plan on living on the other side and that is what we agreed on, this particular building. At the time we didn’t think there was going to be a problem. When I submitted the plans to the building people they said we needed a variance.
Wagner: I think the special conditions are that it is a corner lot, if it wasn’t a corner lot we wouldn’t have any problem with it.
Jordan: I guess you have to look at the size of his home and the others along East High Street.
Fisher: Because it is a two-family dwelling, the setbacks sizes go up. The setbacks for a single-family aren’t quite so large as the two-family. If you had a three-family the setbacks would be greater, if you had an apartment building they would be different.
Spencer: Up on Aukerman, the next block west of there it looks like the same situation. Isn’t that a duplex? It looks like the same lot.
Wagner: It is built on two lots.
Spencer: The only thing I see here under standards, it depends on how you interrupt self- created. He didn’t create Gilmore Street and he didn’t create High Street.
Jordan: He didn’t create the lot size.
Spencer: I will make a motion that we pass this on with a favorable recommendation in this situation it does meet the conditions of Chapter 1133.07, the self-create thing, I think that is not really self-created, considering the neighborhood you are in, Aukerman Street, and what I can see it fits right in, where you are talking about the ten feet, it is the back end. The motion was seconded by Ron Coleman and passed as follows:
Ayes: Coleman, Spencer, Deffner, Jordan (4)
Nays: Wagner (1)
Jordan: We have heard this previously and from what I am reading from the notes everything has been submitted for the application for a split. Who is representing this request?
O’Dell: I am Randy O’Dell of 532 North Walnut Street and I am representing this.
Jordan: Basically, what have you done since the last time we spoke with you?
O’Dell: I had all of the property surveyed and everything taken care of as far as the paper work. I also had a paper drawn up for Maurice to sign stating that he was going to sell me this property.
Jordan: Joe what does staff have on this?
Ferriell: For this lot to be split and to be recorded, the deeds must have a statement of approval signed by the Planning Board Chairman as approved by the Planning Board.
The applicant must provide the appropriate paperwork showing Duggins approval, which we have.
Fisher: The only thing if you noticed, that plat there on the right, Mr. Pope surveyed it so they have the descriptions they need, the only thing they will have to do, if you approve it tonight, then they will have to have new deeds done showing the parcel that Mr. O’Dell is going to buy and combining that with his lot and a deed showing what Mr. Duggins will have left and it will be combined with his lot.
Wagner: What street has access? What streets are accessed?
Ferriell: Walnut.
O’Dell: Walnut, the corner of Walnut and Monfort.
Fisher: Mr. Duggins owns that whole piece and he will be adding his to that which gives him the required street frontage.
Spencer: Are you going to build two places in there?
O’Dell: I am just buying the lot. I may build a garage there sometime. Right now I am just mowing it. I have been mowing it every since I have lived there, four years.
Jordan: These will all be on one deed, one tract?
O’Dell: Yes, all on one deed.
Wagner: Why is that little jog in that survey map? That little V, is that something to do with the railroad?
O’Dell: I think he said that was the City’s right-of-way or something. There is a sewer in there, a drain. He said that was something to do with the right-of-way of the City.
Fisher: This is all his along here and I think he bought that from the railroad, Mr. Duggins bought that and it still had that little jog in it. This was probably all one lot at some time.
O’Dell: If any of you have drove by there and seen how much work I have done fixing that up.
Wagner: Are you putting that fence up down there?
O’Dell: Right.
Wagner: You stopped there because.
O’Dell: Yes, I have been trying to buy this property off of him for four years and he decided to sell it to me. I took out like thirty-two locus trees back there trying to clean it up.
Jordan: Joe, staff has everything that they need?
Ferriell: Yes we are okay.
Wagner: I move for approval of MR-05-02 being that it meets the criteria necessary for a minor subdivision approval, it has access to an existing public road, it involves no opening or widening or extension of any street. No more than four lots are involved in the original parcel. It is not contrary to applicable platting, subdivision or zoning regulations and the property has been surveyed and a sketch and legal description is submitted including location and size of existing buildings. The approval is based on signing of deeds by the Law Director. The motion was seconded by Ron Coleman and passed as follows:
Ayes: Coleman, Spencer, Deffner, Wagner, Jordan (5)
Nays: None
OLD BUSINESS:
Jordan: Is there any old business for the Board at this time?
Wagner: I don’t know is it is old business or not, but I am kind of perplexed about the Comprehensive Development Plan and how we approach it or how we are suppose to approach it. It is my feeling that if the Comprehensive Development is what they say just a Plan, how much are we suppose to follow it and if we are not suppose to be looking at the Comprehensive Development Plan I would suggest we just throw it in the trash can and not pay much attention to it. I think it is up to City Council to decide that, but I think we are going to see a lot more of the situations we are seeing in the North Barron Street area and I think they need to take a different approach.
Spencer: I think to that what you are saying is that the plan when it was made, I don’t think was thought to be forever and ever. I think what you may want to give thought to is how can we make needed adjustments where needed. I think updating the plan is probably the approach.
Fisher: The plan is suppose to be updated every five years. That is currently how we have it set. Every five years the Comprehensive Development Plan is going to be updated. I think that going through the committee meetings for that, every five years we will take a look and see what has changed in the City and decide, do we need to change anything. The Comp Plan is policy, it is not law, you can change it, but it is policy. I recall Wal-Mart was very much in line and we had a really good idea that that development was going in when we did the Comp Plan. We knew that was going to be there. The committee chose to leave those areas residential. I think one thing, and you talked about it last month, was some kind of what Ron said tonight, if they are going to develop North Barron, are they going to do it piece meal. Are you going to update your Plan every five years or are you going to update it every month by changing this lot here and this lot here? I am not saying that one way is any better than the other, that is up for you to decide what you want to do.
Wagner: One thing we don’t want to happen, we don’t want to see a lot of empty residential houses that aren’t being taken care of. That is my concern. That did happen to that corner lot.
Fisher: This is something, the Comp Plan is something that is reviewed by, this is your document, Planning Board this is your thing. If there are things you think need to be changed, if you think that entire North Barron area should be marked Commercial instead of Residential, and you think it shouldn’t wait two more years, you can make that recommendation and pass that on to Council for their review. You can make the change to this document. Do you want to do full areas?
Wagner: We can recommend to Council that we change Barron Street, East and West sides, from certain blocks to commercial?
Fisher: Yes. We things have changed so much, we can’t wait another five years, and we think this part needs to be updated now.
Wagner: We can do that without property owners knowing, having any say in that? It would be a Public Hearing, I understand.
Fisher: It would be a public hearing. Review of policy, that is Planning Board.
Wagner: I know and it is only two years old.
Fisher: You are supposed to come up with the policy and then make recommendation to Council on how you think it should be.
Jordan: As a Board, do you feel that since the Wal-Mart complex has came in, there is a substantial change in that area?
Wagner: Not since then, no, not since Wal-Mart has been there. Wal-Mart was with the change.
Fisher: Nothing in this has changed since Wal-Mart came in. Wal-Mart was planned for.
Jordan: They were planned for.
Wagner: That is my whole point or problem.
Coleman: Another thing that bothers me, though, if these people want to develop this land and it changes, they buy the land cheaper this way than if we changed it to commercial. That is the problem I have there. Some people want to sell it because they know they can get some more money out of their property. Some want to live there and they don’t want sell. I don’t know. I still think that if we are going to do it we have to do it all. I hope if we do it, it changes that way.
Jordan: Any other old business? I guess an update on the UDO. Council has it in their hands and they formed a committee of a whole. They have had three meetings and I attended all three. We are making headway, some changes, clerical, stumbled on signs, stubbed our toe on non-conforming uses, we are going to go back and look at that again. It is moving forward.
Fisher: I believe Council will do their second reading in October.
Jordan: It is getting there. It has been a long process, but I think it is getting there.
Any other old business?
NEW BUSINESS:
Jordan: If not I have noted that Jeff Baker would like to address this Board.
Baker: My name is Jeff Baker and I am here tonight, not for, just your opinions. I am not asking for any zoning, but maybe more on the lines of planning. I am here about the Wal-Mart development on, about possible uses that I am experiencing, not through RG Properties, but just through listing the property down there. What I have experienced with them is they are considering their project sold out for the most part. The land is developed, they have all the property sold, they do have another section that will be behind the new Pizza Hut that they are probably going to build a little strip center there, down the road that hasn’t been sold out. Basically, what they have left is behind Fifth Third and that is what I am here to talk with you about. I got the out parcels here, but you know what it looks like. It is the strip that is 3.7 acres, it is zoned ‘P-1’professional services. We have had it listed for a year and a half, two years, and a year and a half anyway. There has been no interest at all. What they are doing, and I know them as a developer, they are still getting calls from people liking to put things in, well, we are sold out in Eaton here but we have a property up in Celina, would you like to look at that? That bothers me as a realtor that some people are not getting the opportunity to at least come and look and say no, if they want to say no. They do want to be in that area. That is the area that they want to be. I am not up here asking for anything other than the fact that if the right user came to town, that everyone agreed was the right user, would we be able to accommodate them in that area? Right user being, I can’t sit here and promise anything. I know that there has been some interest in the area that would not be conforming to the office use.
Fisher: The ‘P-1’ is per the court order. To change the zoning on that you would have to get RG Properties and the City to go back to court and do an addendum to that court order. In the Federal Order it stated ‘P-1.’
Baker: So that is where it is?
Jordan: Basically, that was actually done to protect the Fudge Avenue residents. They have input and they wanted something that would be low-density butting up to their back property. I can’t blame them.
Baker: Would a hotel, could we accommodate a hotel in that area?
Fisher: Not in the ‘P-1.’ A hotel could go in ‘C-1,’ which is the remaining three acres behind the Pizza Hut.
Baker: No, they don’t want there because of the access. That is their dilemma and you can’t change their way of thinking.
Fisher: The only way to change the zoning on that is to go back through the Federal Court.
Baker: Well, that is pretty much cut and dried then?
Fisher: If the City and RG agree to that it can be done. If they file requesting an amendment to the court order, both parties, I would be surprised if Judge Mertz would have a problem with that.
Baker: I am not speaking for RG at all because this is new to me tonight and I pretty much did it, told them what I wanted to do. We do have some interest in the property, but it is not office interest.
Wagner: The issue there would be how intense it is up there because of the Fudge Avenue residents that were promised some kind of buffer between the Wal-Mart development and their property.
Fisher: What about all of that commercial property behind Wal-Mart? That is all ‘C-1.’
Wagner: On the north side of Washington-Jackson?
Baker: Yes.
Fisher: That was how they did the court order, the land to the east of Fudge Avenue that is still all zoned residential. We expect that to stay residential. All the way up Washington-Jackson, that was all made ‘P-1’ all the way up except for when Washington-Jackson continues the rest of the way over, those two corner lots are ‘C-3.’ The Fifth Third is ‘C-3’ and to the north of Washington-Jackson, that is all ‘C-1’ and that is like 40 or 50 acres.
Baker: Fifth Third is ‘C-3’?
Fisher: That was not part of the court order.
Spencer: When the county first started to look at developing 127 and 70, one of the main areas we were trying to get into was a hotel.
Baker: I want to accommodate these guys.
Jordan: Years ago there was a proposal and it was approved to put one down across from Steinke’s, where the bank is built now. That was all approved and ready to go and it didn’t fly.
Baker: Unfortunately I didn’t pick the site, they picked it themselves and called and inquired about it.
Fisher: I am not saying that it can’t be done, you need to talk to Council. They are the ones that would have to ask the court to change the order and if RG agreed to it, but it is Council that would have to ask to have that changed.
Deffner: What right would the property owners have in that? Would there be a Public Hearing?
Fisher: They weren’t advised to the court order. All Council meetings are opened to the public.
Jordan: They could still address the issue.
Baker: It would be just like some of these drive thru’s or something like that. It would be more traffic than just regular office.
Spencer: It would be lighting to.
Baker: Lighting and height. I would hope it would be busy.
Jordan: I think part of the reason to keep it ‘P-1’ is to keep the low-density and to protect the residential areas to.
Baker: We were just trying to come up with uses that would still make them. I can see with having a drive thru and those kinds of things open till 2:00.
Fisher: I am not saying yes or no, I am just saying that Council will override you on this.
Baker: So, I need to go to Council, okay.
Fisher: Yes. Only Council could agree to the change.
Baker: And RG Properties.
Jordan: Any other new Business? If not I will accept a motion to adjourn.
Fisher: I have two procedural things. When you have a motion that went like the first one, you have a recommendation to deny, the person should have the motion then for favorable. Remember you are not making a motion to approve or deny, you are making a recommendation to approve or deny. If you have one that goes down in deny, it is a lot cleaner if somebody then makes one to approve.
When you do an annexation, again it is not to approve or deny, we make a recommendation to Council to assign this zoning. It is a procedural thing.
Jordan: Okay, point taken.
Coleman: Put one in and one out, that is what you are saying? When you are sitting here trying to go through this stuff and you come up with your crap, that is what it is. I tell you I will get hot on it sometime. When you get this paper work and you can’t see it and you don’t understand it and you guys sit up there and everybody comes in and you know what it is. When you send it to us, man sometimes our hands are tied. We are not telling you and that is our fault, I guess.
Jordan: The phone number is 4125 and you can call Becky anytime.
Coleman: What happened to the meeting, the minutes, to Council meeting and not the Planning Board, what is the other one?
Everyone: The Appeals Board.
Coleman: We are not getting them anymore.
Horine: I sent my packets out before they were ready the last time. All the minutes to Council, Appeals and Planning Board are all on the computer.
Fisher: Everything that I know, I put on your sheets. If there has been something that you don’t understand, you know my office it right there.
Coleman: Yea, but when you sit there and explain it, it is easy and then when you sit back here and try to say it, it’s hard.
Fisher: You need to ask about anything that you don’t understand.
Coleman: You got to say it the way it is, that is the only way to get it out, don’t beat around the bush.
Fisher: The sheets are confusing, too?
Coleman: I will tell you one. Some of these photographs, like this Duggins thing, I still can’t tell you what he bought. Steve and I went through this thing. It is really confusing. How come you can’t take a yellow marker or red marker and outline it. That way we can see what it is.
Fisher: We can do that.
Coleman: That would be so simple.
Fisher: I try to make it simple on the sheets, but I don’t get actually into the maps, but if it would help, I would do that.
Coleman: The maps make it easier, it does for me anyhow.
Fisher: Okay.
Ferriell: That map for Gilmore Street, to give us some idea of what is down there.
Jordan: This aerial view is very helpful to me. It gives you an idea of what you are looking at when you drive down and what you are looking for.
Fisher: Would it be helpful if when we have a hand-drawn map if we would redraw it for you?
Coleman: That probably would.
Jordan: In all reality when the new UDO comes in, when the new applications come out, as far as I am concerned and if they are like some we have got in the last two years, if they are hand drawn, we need to toss them out the window and get it to scale. Come back when you have a proper application and we will talk to you. You need to make it easy for the citizens to do business with City, but it has to be easy for the staff and boards to understand what they want to do. That is one of the procedures in the new UDO, is updating the application process and making it simple for everybody and more readable and understandable.
Fisher: I will start writing notes on the maps.
Coleman: You know like some of these, I think about it ahead of time, well if I am going to make a motion I am going to say it this way. Then you get here and then your mind changes and then, now how am I going to do it.
Fisher: You get more out of this than we at staff get. We don’t talk to the applicants before hand. A lot of the evidence you get when the applicant comes in isn’t something we have heard. We give you the best of what we have and yes it can change when the actual applicant gives you more evidence.
Jordan: Anything else?
Wagner: Before we adjourn I would like to make a comment. Last month we were here with how many members, five, we are here this month with five. Last month we had two people abstain so three people made the decisions, and those are important decisions. I think we need to impress on all members, including myself and everybody here, that even though you are appointed, you still need to be here, everybody needs to be here. We need those seven opinions because it would make a big difference on what the end result might be.
Jordan: I know and I agree with you and it is very important if you are on this Board that you show up for all meetings that you can. It is detrimental to the applicant if we don’t have a full Board.
Wagner: Like last month three people deciding that issue, tough, three people making those motions for three people and for the applicants, it doesn’t look good.
Fisher: I think you need to really think about what you want to do with North Barron. I agree that the lot we just saw was different because it doesn’t have a Barron Street access. You are not going to have all those little individual drives on and off. Those other areas there behind Wendy’s and there further down, how do you want to deal with that?
Jordan: We stated last month that eventually all of that will become commercial, and I think it will, but I don’t want to see them piece meal each lot at a time. Tonight’s lot was totally different because it was lot out there by itself, along Fudge Avenue. It wasn’t a whole string of lots.
Wagner: I would agree that it was different, but I can’t get away from the Comprehensive Plan and what the purpose of it is.
Jordan: I see your point Gary, but it is a plan, it is a guideline.
Wagner: Then why do you need a Board?
Jordan: It is a guideline for us to go by and help base our decisions and sometimes you have to deviate from the guideline. When it comes to the point that we think we have a major problem.
Wagner: I think we have one.
Jordan: I think we do to. Anything else?
Ron Coleman made a motion to adjourn and Gary Wagner seconded it.
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Secretary Chairman