MEETING OF THE EATON PLANNING
ZONING AND BUILDING BOARD ON JANUARY 10, 2006
AT 7:00 P.M., IN COUNCIL CHAMBERS
The Eaton Planning, Zoning and Building Board met in regular session in Council Chambers on Tuesday, January 10, 2006, at 7:00 p.m.
The roll was called and the following were found to be:
Present: Ron Coleman
Stanley Spencer
Tim Lane
Harold Geeting (Vice Chairman)
Steve Deffner
Gary Wagner
Tom Jordan (Chairman)
Also in attendance were City Manager Dave Daily, Mayor Bob Stonecash, Law Director Donnette Fisher and City Engineer Joe Ferriell. The meeting was called to order at 7:00 p.m.
MINUTES:
The minutes of the November 8, 2005 meeting were read. A motion to approve the minutes was made by Ron Coleman and seconded by Tim Lane. The motion passed as follows:
Ayes: Coleman, Spencer, Lane, Geeting, Deffner, Wagner, Jordan (7)
Nays: None
REORGANIZATION OF PLANNING BOARD:
Jordan: The next item we deal with is the reorganization of the Planning Board for 2006. We will get into the meeting after we get that housekeeping detail taken care of. We will elect the Chairman and Vice Chairman for this next year. At this time I will call for nomination for the position of Chairman.
Coleman: Mr. Chairman, I nominate Tom Jordan for the position of Chairman for a one-year term, ending January 9, 2007. Harold Geeting seconded the nomination.
Nomination passed as follows:
Ayes: Coleman, Spencer, Lane, Geeting, Deffner, Wagner, Jordan (7)
Nays: None
Jordan: At this time I will call for nominations for Vice Chairman.
Wagner: I nominate Harold Geeting for the position of Vice Chair for a one-year term ending January 9, 2007. The nomination was seconded by Ron Coleman and passed as follows:
Ayes: Coleman, Spencer, Lane, Geeting, Deffner, Wagner, Jordan (7)
Jordan: Now we will have the swearing in of the audience.
SWEARING IN:
All members of the audience anticipating to testify before the Board were asked to raise their right hand and be sworn in. The Secretary administered the oath or affirmation to the audience.
MR-05-05 – Stephen and Christina Brown – Minor Subdivision - 316 W. Main Street:
Jordan: At this time, being that the County just presented us with more information for their application tonight, we are going to move on down to the minor subdivision MR-05-05 and it will afford them some extra time to look at that. The applicants have applied for a minor subdivision to split approximately 0.275 acres off their existing tracts, located at 316 West Main Street, to be sold to their neighbor and added to his property, located at 115 Millrace Lane. The applicants’ current property consists of two tracts, Lot 1342 and Out Lot 38, which are listed together on one deed. The applied for minor subdivision would split 0.144 acres off of Lot 1342 and 0.131 acres off of Out Lot 38. The subdivided land would then be sold to the applicants’ neighbor to the north as one tract and added to his deed. Who is representing this tonight?
Earley: My name is Jake Earley, an attorney here in town, represent Jay Cobb who is the owner of the property to the north. We filed that application to secure the Board’s permission to take 100 feet off of the north end of the Brown property and add it to Jay’s property. If you are all acquainted with that, that was Parker land. Elizabeth Parker owned the brick where Browns live, and Sally and Jim Parker owned the property where Mr. Cobb lives. Jay bought his from Sally and when Elizabeth died her property was sold to McCrabs, McCrabs sold to McKinney, McKinney sold to Browns and Browns are now in California and before they left they had a discussion with Jay about adding property to his adjacent lot. His house sits about 16 feet off of the north property line. If you were out there, there is the air conditioner; it is about 16 feet to the first wall. Then there is a drop down and there is 100 feet to the north side of the brick wall that is there that divides the yard. What we would like to do is to add that 100 feet to Jay’s yard and merge it with the property so it cannot be separated and what I suggested to you, the language is in the package. I have done that merger type language before. It provides that it cannot be separated. Browns would still have approximately 74 feet from the back of their house to the wall. I will answer any questions that you might have.
Jordan: Any Board members have any questions at this time?
Wagner: I was out there and looked at it today. The wall that you are talking about, is that the L shaped wall?
Earley: Yes. Brick wall that looks like it is in the middle of the back yard but it is 100 feet from Jay’s wall, by his house.
Wagner: Where the step down is?
Earley: Yes. To this wall and then it is about 74 feet from this wall to the back of Browns’ house.
Jordan: Did you present the aerial views or is that something the City did for us?
Earley: I had one. They may have done that one.
Jordan: I just wondered why there was a difference between lines as far as present property.
Earley: I didn’t do either one of those.
Ferriell: We did those. I was going to get into that when I spoke.
Jordan: We will let you get into that and then we will go back. Why don’t you go over that now?
Ferriell: We got those maps off of the auditor’s site. The auditor’s site shows this property line at this point, as one half, and it was understood by me that Mr. Wikle had surveyed it and that the auditors site might be wrong.
Fisher: If you look at the deed, the property line they are describing is at the “low water mark,” which I am sure has probably changed since this was drawn up and will be changed again. When he surveyed it, the “low water mark,” that is where Mr. Wikle found it.
Earley: I would point out to you that the caveat that is at the bottom of the auditor’s plat, starting here, “can’t be used for determination of property lines.” Mr. Wikle is a registered surveyor with the State of Ohio. That description, I have had approved by the County Engineer’s Department so I can convey using the description Mr. Wikle prepared.
Fisher: Joe just drew up those maps, the GIS maps, so you could see which part was the Browns’ and what was Cobb’s.
Jordan: So basically it is going to be the same thing just a little different in the drawings?
Earley: Yes.
Wagner: I am assuming that this is an error. Why was this highlighted yellow in your application?
Earley: You asked for a vicinity map and that is the vicinity map. That is where it is.
Wagner: Okay, it is across the street though, right? It is on the wrong side of the street.
Earley: You are right, it should be this tract in here.
Wagner: I just assumed that it was marked wrong.
Earley: My secretary colored that wrong.
Ferriell: That was the main question that we had, Tom, as far as both the remaining Brown lot and the new lot to the north, they will meet the new lot size and requirements.
Wagner: This Part Outlot 38, that intrigues me how it is in there, is that actually owned by another property owner?
Ferriell: Browns own both of them.
Wagner: This Virginia Sanger Royer is it not?
Ferriell: Her lot, it runs up the creek bed.
Spencer: I was curious how that ever got created.
Ferriell: Tax map will verify that when they go through it and as long as the property closes out there will be no problem.
Jordan: Any members have any questions or comments on this matter? My only concern was the lot line, where it actually was for sure.
Joe, does the City have anything else to add to that?
Ferriell: Not at this time, no.
Wagner: I move for the approval of case MR-05-05 in that it meets the applicable standards as indicated in Chapter 1103.03, Plat for Minor Subdivision, and meets the Subdivision Regulations, so the subdivided lot will have the required 40 ft. abutting frontage to the street and the land is zoned ‘R-1B,’ One Family Residential District.
The motion was seconded by Harold Geeting and passed as follows:
Ayes: Coleman, Spencer, Lane, Geeting, Deffner, Wagner, Jordan (7)
Nays: None
AB-05-20 – Board of County Commissioners – Preble County – Variance – Intersection of Washington:
Jordan: The County did submit the answers for the application tonight. If the Board would like to take a few moments and look at them before we open the case or if you prefer we can table it?
Spencer: We are talking about two splits here instead of going ahead with just one, right?
Jordan: That is the way I understand it.
Spencer: If these are separate splits can we do them in one action or would you have to have two different actions?
Jordan: Actually, what they are doing tonight, the first item they are asking for a variance to decrease the lot width on a ‘P-1’ lot.
Fisher: You had suggested that they combine it, make it a 4.552-acre lot. The only other option other than that, to keep it two separate lots, was to apply for a variance because that one lot is too small. They chose to apply for a variance and make two lots.
I recommended to Tom you may want to hear the variance application before you un-table the minor subdivision because if you don’t approve the variance, don’t un-table the minor sub because they may want to see what else they can come up with.
Wagner: It seems to me that the explanation that they supplied us in this document,
responds well to those six questions that we have to address.
Fisher: The only comment I would make on that is, the City of Eaton couldn’t have dedicated the tract because we don’t own it. Only the owner can dedicate it. As far as (b), that is the only section that I have contention with, the Hakes did not create a nonconforming tract when they dedicated roadway. It was one lot and they dedicated roadway upon it. There was no nonconforming tract created by the Hake subdivision, at all.
Wagner: If we would approve the variance and put the restriction on the deed, would that suffice for allowing this to be completed and with the roadways indicated?
Fisher: There are a couple of ways to do it. The initial choice was there was a record plat done for record purposes only. That was the Resolution that Council approved back in July, August? That was the plat showing where the roadway was going to be and it would have allowed it to be recorded, but it was not an acceptance of dedication. The reason that we had chosen to go that route was, we don’t want to build the street, the County doesn’t want to build the street and now the hospital is going to build it. By going that route we weren’t officially accepting a roadway, the roadway would not be accepted until it was built, meaning the City wouldn’t have been on the hook to build it, the Youth Foundation wouldn’t have been on the hook to build it, and the County wouldn’t have been on the hook to build it. That option was turned down by the County. They didn’t want to do that. The other options are to create this non-conforming tract, I think if you are going to do that you have to put a condition upon it. I think you have to put a condition upon it that it is not a buildable lot, that would be the main concern on that. The other option is to leave it as a 4.552-acre tract. I don’t think that anyone has any questions that the Youth Foundation, when they get it, are going to dedicate it for roadway purposes. I don’t think we here, have any doubt that that would happen. Judge Dues is here and I know Judge Dues had said that the Youth Foundation will dedicate it and if he said they would do that, I know they will. I don’t know necessarily, they would be the owner of the tract at that time. The only concern that the County would have, that we are going to build the road and stick them for it, is gone because the County is no longer the owner, the Youth Foundation would be the owner. Those are the three options. When you look at this you have to look at it as you have the other tracts that we had come in where it was someone wanting to build something or create a new lot, they have created a non-conforming lot. It is up to you to decide if whether or not that problem is self-created and whether it is justified.
Spencer: I think it makes sense, in fact it is stated in there and it can be enforced that way, that there can never be anything built on there and it can only be used for something like you are talking about here. I think that would be perfectly fine. As long as it is in there no one can take that and misinterpret it or build something like that. Once you get the roadway in there is no question, it is a roadway.
Wagner: I guess for the record, you stated that the Youth Foundation, Mr. Dues, as representative, stated that it is going to be for roadway. Maybe if you stated it for the record?
Dues: Certainly, I was waiting, I didn’t want to interrupt.
Jordan: Why don’t I go ahead and open the case and if you are comfortable with it then we can go ahead and proceed with it and decide from there.
I will call to order AB-05-20 a variance to decrease the required lot width in a ‘P-1’ district and do you want to explain what you are trying to do?
Worthington: The County Commissioners, the first thought was, okay we don’t want to build this road, and they didn’t want to dedicate it. The thought was, why don’t we just grant this property over to the City and let it be the City’s property? The City doesn’t want to build the road either. That is where all of this started. The next thought, I have been working with Council here to try and figure out some ways of going through this. At the last meeting you had suggested that we combine the two tracts of property into one parcel. Then I got into some problems with that. I do agree that we could put an easement on it with specifics of what that is, however the problem comes in that because this easement is so precise and so exact as to what it is, which is the only kind it can be, and because it would essentially create a second tract for tax map purposes. Because it creates a separate tract, that does not necessarily mean it would make a separate zoning tract, however I believe in this case it would make a separate zoning tract because you would have one parcel that is definitely being combined with the Youth Foundation going to have the Y built on it and you are going to have another section that has noting to do with anything and in fact has a easement placed over it or some sort of deed restriction placed over it stating that nothing else could be done. That didn’t seem to be the way to go. As far as just transferring all of the property, 4.552 acres over, and all of that, at the time when I was discussing this with the Commission there was still questions as to the CIC and all of these things that were going on. At the time when this was discussed, it was decided that just to insure and no doubt, Judge, Mr. Dues is for the Youth Foundation is saying that no doubt he is going to build this roadway and I truly believe him, but the Commission would just like to go ahead and say, have something on paper, on record in the recorder’s office that you can get to that says, this is a roadway, this will be a roadway, this is all this property can be, a roadway. In order to do that we split it into the two separate tracts, we are asking for it to be split into the two separate tracts. It is not even buildable. It is only I think, 50 ft. wide. I would like to see a house that you could put on that or something. It is not buildable. We don’t intend to build on it, no one intends to build on it. The only thing that will be built on it is a road. In fact the deed restriction will state that all it can have on it is a road. That is where we are. I am hoping that you will go for it, that you will be okay with it.
Dues: Thank you for taking the time to look this over. I am here, not as everyone keeps referring to me as Judge, I am here tonight as Chairman of the Youth Foundation. I don’t have my robe on or anything and I have absolutely no power. The only reason that we are getting the roadway, as indicated, the County was concerned about being obliged to build this road and the City was understandably concerned about being required to build this road and when there was a delay in the transfer of the property, I just went to the Commission and said to give it to me and I will find somebody to build the road. The Youth Foundation has a tremendous working relationship with Kettering/Grandview Center and I called the Vice President and said that there was some delay because of this roadway, the Commission is willing to transfer, they can’t transfer it to the hospital because there is no relationship between the County and the hospital. I said you could put this section of the road with the four acres that you have agreed to sell to the Youth Foundation and I will see to it that it is dedicated and I will find somebody to pay for it. Technically, when it is transferred to the Youth Foundation, we will have the obligation to build it, build the road, at the point and time that it needs to be built, but again because of the good relationship that we have with the hospital, I am going to find somebody to build it and pay for it other than the Youth Foundation. I ask the Commission to just attach it. It was out intention to use the four acres to begin the process of inviting Sinclair Community and/or Miami University or other institutions of higher learning to help the Youth Foundation build a facility along with the expansion of the Preble County Y. That is why we are getting four acres and will need the roadway attached to it to make our property more valuable, plus give the access to the hospital and its expansion to the north. For the record, the Youth Foundation is going to see to it that the road is built at expense not borne by the County or City..
Fisher: The hospital has indicated to us to that they intend to build it.
Dues: I talked to Jeff Dillon who is the Vice President.
Fisher: Were you planning to dedicate roadway or transfer that tract?
Dues: We are in the process, Kettering and Grandview and the Youth Foundation, are in the process of discussion of several different things because of their intention to build immediately behind their facility over the course of years they are going to have to go over other parts of our land which gives us the ability to discuss with them and the fact that we have the roadway back to their property gives us the ability to discuss with them various financial transactions. Whether or not they give us the money to build it or they seek grants or go with us as a joint venture to seek grants from the state or federal government, we are going to get it built with no cost to the City or County except possibly through grants or something like that. Any questions? Again, the only reason the Youth Foundation has it is because it is there and they can’t transfer it to anyone else.
Fisher: The reason I asked that was, unless they are planning to transfer that lot, the little nonconforming lot to the City outright, there is no reason to split it off. It can be dedicated as roadway as part of the 4.552-acre tract. If it is split into two lots and it is just dedicated, they still own it, then you have created two tracts really for no reason. They are still going to own it they are just going to dedicate it. Unless it is going to be transferred out right to the City, there is really no point in having that as a separate tract.
Dues: Not being a real estate attorney I am not sure how I can dedicate something I don’t own and I cannot own it?
Fisher: If they give you the whole thing, 4.552-acres and transfer that to you as one lot, you can dedicate that 0.552 acres for that purpose.
Worthington: I just want to get this done. This is impeding the process of the Youth Foundation with being able to get the grants, in being able to get the hospital portion done, we just want to get this kind of through. This is one of the avenues that it can be done is to actually split it. I understand this is a nonconforming building tract however, there will be no buildings on it, it will be for a roadway purpose only. In fact, I know it was mentioned with the Hake property, that that is dedicated roadway so therefore it is not nonconforming. This tract is nearly the same thing as that is, it just won’t be dedicated yet until it makes it over to the Youth Foundation. There will be a transfer that will occur, if I were to have this as one total tract and put an easement, sorry I wouldn’t be able to do the easement, but place the deed restriction on that portion, the County has to transfer to the CIC, the CIC are the individuals that will be selling it to the Youth Foundation. The County cannot direct sell it without bidding it out. There is only one exception and that exception is using the CIC. That is the County’s intention, using the CIC. If we were to do that, as soon as you had the transfer, then the transfer would cause, it would be considered a split, if I had it as one with the deed restriction on it.
Dues: I am just in the middle as being the client.
Wagner: You indicated that this could be one tract, it could be 4.552 acres and once that is done the Youth Foundation could dedicate, who would they dedicate it to?
Fisher: The City. If they become the owners they can sign off on the dedication plat “for record purpose only.” That will assure that the Youth Foundation doesn’t get stuck building it either and the hospital is going to have to build it. The City won’t officially accept the dedication until the hospital builds the road. As owners of that property the Youth Foundation could sign off on that “for record purposes only” plat of where that roadway is going to be.
Wagner: That is what we looked at last month?
Fisher: That is what we looked at months ago. I bring that up because I hate to see you create a non-conforming tract when you don’t need to.
Spencer: We all want to get to the same place it seems like, we know where we want to get, it is a question do you do the right route or do you go around, it is six of one and half a dozen of the others.
Fisher: You always go the right way.
Worthington: I think they are both right ways.
Jordan: It is all kind of confusing, but when we do a subdivision in this town’ we don’t dedicate or have a separate tract for the roads. This is dedicated roadway, so why can’t this be done here?
Worthington: The County did not want to dedicate the roadway. When this was initially brought to the County to go ahead and dedicate the roadway, the City could not insure us that at that point and time that they would not then accept the dedication and then force us to build the road, force the County to build the road and they didn’t want that to happen. I can tell you, that is exactly why they didn’t dedicate the roadway, that is what they were concerned about and that is why trying to find other avenues to get this accomplished and this was one of the avenues that was thrown out there.
Jordan: We all want to get to the same point, it is just how we do it. I am a little queasy about creating a non-conforming lot.
Wagner: How long will it be a non-conforming lot? It will only be non-conforming until the roadway goes in or will it always remain a non-conforming lot?
Fisher: It will always remain a non-conforming lot.
Wagner: Do we have any non-conforming lots in town?
Fisher: You haven’t created any non-conforming in the time I have been here, any new ones. The ones that are here were existing.
Wagner: I don’t want to stand in the way of progress, actually I want to see us, like Stan says, get to the same place and I don’t want to hold the Youth Foundation up as she indicates. It is holding up the whole process. I don’t understand the County Commissioners wanting to do it this way, I have no problem, because of the circumstances that we are in, with doing this. I know what you are thinking.
Fisher: As long as you can fit it into your conditions. You have six conditions that are going to have to be met.
Coleman: Does this same thing have to happen with the Church land?
Fisher: The Church was willing to sign that “record purposes only” plat.
Jordan: The Hakes, we did the same way that the Church is doing it?
Fisher: I am sorry?
Jordan: How did we do the Hakes, the one back behind, their roadway?
Fisher: They did it like Frizzell does it.
Jordan: Like a subdivision?
Fisher: They did a subdivision and they dedicated roadway right on the subdivision plat.
Wagner: The only contention you have with this narrative is item (b) or number 2 I should say?
Fisher: Yes. The Hakes did not create any non-conforming tracts.
Spencer: It was already non-conforming, is that what you are saying?
Fisher: No, they are all conforming.
Spencer: Non-conformance was not an issue there?
Fisher: No.
Jordan: All the Hakes did was dedicate the roadway, which is what we asked the County to do two months ago.
Dues: There is really nothing I can do because I don’t own the property. All I can say is that when I get the property it is going to be a road, whether I get it in one tract or two tracts.
Worthington: The property will have on it the deed restriction which states that it can only be a roadway. So, although it is a non-conforming tract it is not a buildable non-conforming tract or anything like that. It will just be a road.
Jordan: Why can’t they put the deed restriction on the whole 4.552 acres?
Worthington: That is the part I was telling you about. If I do that then I would be back here before you again in three months, that’s what is going to happen. It would essentially create two separate tracts for the tax map purposes. Because it is tax map purposes it doesn’t necessarily mean for zoning purposes, however in this case it would actually happen because the four acres would be exclusively used for the Youth Foundation to extend the Y facility whereas this other .552 acre tract would have a completely separate distinctive character that has a restriction on it that it can only be used for a roadway. So, in essence you would be okaying a split at that point in time with out officially do so, so I would have to come back and go through this process again, as soon as we try to sell the property.
Fisher: They would come back for the 4.552 acre tract and it would get transferred to the Youth Foundation then they would dedicate it, tax map does split that off because they don’t get taxed for that .552 which they still own, because it is a roadway. It doesn’t officially become another lot, but tax map removes it out so they are no longer paying taxes on it. That is how that works.
Worthington: It won’t be dedicated at the point that it goes to tax map and that it is transferred to the CIC so that the part that will get held up on is not when it is going to the Youth Foundation but when the County transfers the property to the CIC. That is when I would have to come back over here.
Jordan: An easement would not have to be re-dedicated.
Worthington: Who would I do the easement to, who is the County to do the easement to?
Is it to do it to the benefit of the City, is it to do it to the benefit of the Youth Foundation?
Youth Foundation, if we get the easement to the Youth Foundation then you have the same problem that we are giving them the bundle of sticks, the property including what the road dedication is.
Fisher: I guess I am confused, if it 4.552 acres and it goes from the County to the CIC and CIC to the Youth Foundation and the Youth Foundation has said that they are going to give it for roadway purposes, why do we need the easement?
Worthington: That is why I don’t want to do an easement.
The County just wants to insure that no mater what that that .552 acres will go to, I am just telling you that they want it in writing, they want documents, they want it put in the Recorder’s office over in the Courthouse.
Fisher: That is fine that they want it in writing.
Worthington: They want it in the Recorder’s office so that if anyone were to look at this property, lets say that something were to happen, I don’t know, a few years down the road if this weren’t to happen right away, where are we at then? I don’t think that is going to happen though since it is the Youth Foundation.
Wagner: The City is never going to own any property up there, if that is what the concern is.
Worthington: No, the concern is that the City would decide to go ahead and accept the dedications and then go ahead and build the roadway if we were to dedicate it at this point in time.
Wagner: Who would build the roadway?
Worthington: That the City would build the roadway and then you would charge each of the different entities that have dedicated the roadway.
Fisher: The County wouldn’t sign off on the “for record purposes only” plat because the idea was that we were going to build the road and then charge them for it.
Worthington: That is something that could happen in the future because the roadway is not going to be going in right away.
Wagner: I just have a procedural question.
Fisher: Yes.
Wagner: This application was filed the 6th, was filed the 6th of December. When did our UDO go into effect?
Fisher: The 17,th so this would fall under the old code.
Wagner: This has to go through us and then through the Appeals Board as opposed under the new code they would just go to the Appeals Board.
Worthington: That is the other thing then if this is denied tonight, then I have to go through the new code. I don’t know if that makes a difference.
Spencer: What kind of delay would it be if we turned it down this evening?
Worthington: Another month or so because I think I still get to go to the Board of Zoning Appeals, correct? Then it goes to City Council and by the time Council would do it, we are looking at what, another two months down the road.
Fisher: It doesn’t go to Council, so we are just looking at another month, at least another month, it would be March.
Jordan: It would go to the Appeals Board the 23rd. Dave did you have a comment?
Daily: If I could ask the judge, what does your timetable look like? It seems to me that it gets to the end of this and it should be rather simple.
Dues: Your part or my part?
Daily: We can get there. You and I worked on this five years ago when we fought your roadblocks. Where are you at time wise?
Dues: I am not under the gun like I was earlier. I am dealing with Kettering, Sinclair, Miami University, another entity and the Y. Two months ago I would have told you that I needed it yesterday because somebody was concerned. Right now I am in the timetable, I want to get the land from the County. You work for a governmental entity and they change their minds. I want to get the four acres to the Youth Foundation as quickly as possible. From that standpoint I am interested in getting the transfer process started. As far as the development goes it is going to be a plotting process because we have to cover the $125,000.00 purchase price and then the ticket on the other dreams we have are about two million dollars, it takes awhile. I don’t want to go ten years like it took me the last time for us to build the first process. I don’t want you to think that I want anybody to hurry up or be uncomfortable. I would love to have it taken care of tonight because that would be one less thing we would have to worry about. We would be starting on the next process which would be getting it to the CIC, getting it out of the CIC’s hands and getting it in the Recorder’s office in our name and then we can proceed.
Daily: I have heard the CIC mentioned a couple of times. What CIC are you referring to in this process?
Worthington: The one that is made up of, the original one, the City and the County.
Dues: Let me make it very clear, I am not involved in that at all.
Daily: There are things happening out there that we are not aware of and we are becoming involved with …(interrupted)
Dues: I know this is being recorded, but I want you to understand that I am more ignorant of that.
Daily: It has been mentioned twice and I am on the CIC and I have not heard, the CIC that I have been on.
Dues: My only concern with that, Mr. Daily, is that I want the title to the property that the Youth Foundation receives to be clear. If there is someone like Mr. Earley doing a title search and we have to borrow money to build the facility and put a million dollar mortgage on the property, I want Mr. Early or any other title attorney to be able to see everything is clear from this process and/or who transferred the property to. That is where this issue came up with regard to Gateway, CIC. I have nothing to do with that.
Daily: The Attorney General’s Opinion if forthcoming, is that correct?
Worthington: Yes. In fact they have taken, if you go to the Attorney General’s website, they have a listing of all the opinions that have been requested and I noticed as soon as they have issued an opinion that they pull off the request off of the website. Our opinion has been pulled off of the website so I think we are going to be getting it within the next couple of weeks. They pulled it off last week so I am hoping we will get it this week. I am very hopeful, I am almost positive in fact, that they are going to say that you need to go through a CIC in order to do that. That that is the only way this transfer can occur.
Daily: You and I went through this five years ago, way back when, we just want to get it done. I am sure you don’t want to get caught up in this stuff in the middle. It is a simple process; we do this all the time with our subdivisions. What do we need to do to get the Judge what he needs? What do we need to do?
Fisher: I guess it is a question for the County. Things were recommended last month, give us one tract, a 4.552-acre tract, legally it meets all the subdivision standards, there is no discretion there.
Daily: Katie, you are saying that to do that you would have to go back to the Board, right?
Worthington: Yes.
Daily: Then we are back in the time again.
Dues: I wasn’t involved in that process. I indicated to this Board that I said why don’t you give the Youth Foundation. You are looking for someone to give this strip of land to, to build a road on. You can’t give it to Kettering, you can’t give it to the Church, you can’t give it to the Hakes, you can’t give it to the City and you don’t want to keep it yourself. I just stepped up and said, “Give it to me or sell it to me.”
Fisher: That is what Planning Board said the last time, give it all to the Youth Foundation and then let them dedicate it to the City. If there is just one tract then you don’t have to create those non-conformances.
Worthington: The concern with the County was to just assure that that portion of the tract would remain and for all intents and purposes would know, if for whatever reason something would happen, that that portion of the tract had always intended to be a roadway. That is what it is suppose to be is a roadway, it is intended to be a roadway and we want it to be a roadway. We want it to go back there so it can go back and connect to the hospital that is going to be going in and that’s what.
Jordan: I guess where I am falling down as what is going on with the Commissioners, why can’t we do this like we do every month. We subdivide the lot and take this strip of land that is going to be a roadway, like any developer does, you can transfer it to whoever you want and they are going to build the roadway. It is not like the City is going to come in here in two months and build the roadway while it takes CIC to the Youth Foundation.
Worthington: I am just expressing what the Commissioners have told me and that is that they wish to insure that this portion of the tract will be for a roadway, that it is out there, on the records, in the Recorder’s office that this would be a roadway.
Jordan: Then all you have to do is that when you draw up your plat, dedicate it as roadway like any developer does in the City of Eaton.
Fisher: They could do that. Draw it up as a minor sub, dedicate that roadway and then transfer it to the Youth Foundation.
Jordan: It is not that difficult to do.
Daily: It has already been described, has it not?
Fisher: Yes. The County is not “on the hook” for anything at that point.
Worthington: At the point and time when all of this was started up, what was this October, November? There were questions as to how this transaction was going to occur, there were questions as to what the proper procedure was for this, how to go through and then how to actually get this to go through. At the time there was also concern to insure that that property would be a roadway and also that if they were to dedicate it because they didn’t know how it was going to go through, that if they dedicated it at that point in time, that they were concerned that again they could be “on the hook” for building a roadway if the City were to decide to put that roadway in. That’s what the thinking was back at that time, just so you will know what the frame of mind was at that point. Now the City, I am sorry, now the County has finally, not finally, the County realizes or the County knows and the County is going to use the CIC for the land transfer, so that takes a lot of that questions out and that was one of the biggest concerns and that was kind of the overall cloud covering the decision making on how to do this at that point and time.
Spencer: I think the record of tonight’s meeting is going to prove to them it is going to be nothing but a roadway also. No matter what happens it can only be and will be a roadway.
Jordan: There has to be a trust. For a governing body, thinking that the City is going to mess them over when you dedicate that land and build a road. I mean I just can’t understand a governing body thinking that way.
Worthington: They just want to insure that the roadway will go in.
Jordan: If you dedicate it as a road, it is going to be a roadway. It is quite simple.
Worthington: We thought the deed restriction would do the same thing.
Fisher: What you can do on the plat, and this is what we had the Hakes do when they did their subdivision, you put on there “for record purposes only.” That means it is not officially a public street until the hospital builds it. The City has to accept any dedication such as that of a road by ordinance. They could do a minor sub plat, put a dedication “for record purposes only” transfer that to the CIC to the Youth Foundation, it is one tract and it has already been dedicated, you are sure it is going to be a street, when the hospital builds it then the City will accept it as a public street.
Worthington: Quite frankly, I just want to get this over with, honestly. I am tired of it being on my calendar, I am tired of dealing with this issue, I would just like to see this taken care of so we can move on. So we can transfer this property to CIC and so it can get into the Youth Foundations hands so that they can work on receiving those grants to build that extra area.
Wagner: I guess my question would be, that if the County was in favor in December or November whenever it was, to make it one tract, what was their motivation to change?
We ask you to bring it back as one tract.
Worthington: Yes.
Wagner: It was my understanding that you were going to come back with one tract.
Worthington: We were going to come back with one tract, that was the thought to come back with one tract.
Wagner: What was the motivation to change that?
Worthington: The motivation to change that was because the County wanted to insure that that .552 acres on that one tract would be for roadway and again they did not want to dedicate. That is where it came in. That is why it ended up being separated into the two.
Spencer: The downside for the City right now to approve this right now is we are creating a non-conforming lot, which we don’t do.
Wagner: Which in you opinion is an illegal action?
Fisher: It……
Worthington: It is not an illegal action.
Fisher: It doesn’t meet the standards. Is the problem self created? If it is then you can’t grant it. If this is the only thing that you can do, is it the minimum necessary to relieve the hardship or are there other options? You have a whole list of standards there. Does it meet those or doesn’t it?
Coleman: It looks like you have the County and you have the City and both of them want to do it their way. You have to talk. I don’t think it is this Board that has to talk I think it is the County and the City that has to talk. There is somebody there that is going to have to get together. It sounds like the City has the right ides.
Daily: I will respond to that. When this whole thing came up, Ron, the City was confused as to what was going on, I called down there different times and talked to people and couldn’t find out anything. Katie, when I talked to you, you said it was a lack of trust. That the City had done something previously.
Worthington: Someone had said something to that affect and I don’t know whether that, I don’t know.
Daily: You and I had that conversation.
Worthington: Yes, I remember that conversation.
Daily: I came out of my office to Marsha Shannon and I said, “Do you know anything that….(interrupted)
Worthington: Someone had said that to me and I don’t remember if it was a County official, but that was something that I had heard in the past. That there was something that was done and so the County was afraid.
Daily: I called Ken Moreland right away. After quite a bit of time he finally said, “Yes, we basically don’t trust you.” I assured Ken that we wouldn’t do that and Ken assured me that I may not be City Manager next week and someone else might. Ron, it goes back to that and for whatever reason there is a lack of trust and it is another issue that we are dealing with and we don’t need is to get the Judge caught up in this. There are things that we just went through a special meeting on where there is discussion on OGDC, another CIC, I don’t know what this has to do with it. When you talked about all of this from September and October about the CIC and that, where is Floyd Geeding on this, where is Jonathan Hartman, where is this transfer of the land that we didn’t know anything about until December 20th. I don’t know what is at play here, but the Judge does not need to be involved. He does not need to be caught up in this. We have, Ron, a format that we use, Tom talked about it, we use it with developers, we have used it for years and years and years. That is all we want to do. The mayor is here, “Are we going to do anything to the County?”
Stonecash: You beat around the bush, you went around sideways, and they don’t trust us. For whatever reason we are very unaware of that. Things went very smoothly, eventually after Dave went down there and met with Becky and it moved.
There are three people, there are four people, five, six,
Floyd, Jonathan, 3 Commissioners and Ken that are holding up this process. I
don’t know if they are trying to prove a point or what the situation is, we sit
there across the table yesterday and had discussions.
They just flat don’t trust us. Why have the Youth Foundation caught up in
this? It shouldn’t happen. Last month you were here and it was agreed that
they could go with that and it was the proper way to do it and now they come
back with another plan. Now who’s fault is it?
Worthington: It was actually the original plan that we came up with was the two tracts when I originally came before but we didn’t do the variance on the one.
Stonecash: But the Board ….(interrupted)
Worthington: Had asked, yes to go to one.
Stonecash: They asked you to go to one, which would work. I know it’s not your fault, you are just doing what you are told. But, that is the problem. There is a lack of trust and whatever they want to say that’s where it is.
Daily: I say go back on the history, Judge, when you had to get it done X number of years ago, the City came in and used Englewood’s model, if you recall, we were the straw man,
get it to you, let’s just do it.
Dues: The City went out on a limb for us.
Daily: Gene Krebs was fighting it, I will say it, we got it done, right? You have a wonderful facility up there. I know how long you fought with the chicken factory and everything else, I understand all of that. We do not have any agreements that I am aware of, and I have been City Manager since the year 2000, to not trust us. I say time and time again that the City is open. There is no reason not to. I have heard that if they transfer it to CIC the City might get involved and try to sell it for a higher price.
Worthington: I haven’t heard that.
Daily: I heard that the City will be out to get the press on this. Don’t let them do this because we will grab the press on it. We don’t want any press, we didn’t before did we?
I don’t understand it and I hate to get you guys involved in it, but you have to know. I know you are confused.
Jordan: I am not so confused, I know what our procedure is.
Daily: There are other things that should not be happening here.
Jordan: They are being brought into this matter and they shouldn’t be.
Fisher: The law should stand for everyone, it shouldn’t matter who the applicant is. It should be the same for everybody.
Dues: I want it to be on record, the last thing that I want for the Youth Foundation which is a community-wide, not-for-profit, benefits everybody, foundation is to get special treatment or to create problems. Again, I am merely the client or recipient of this process and all I want is that at some point and time, two months ago I wanted it quickly, right now I am not so concerned because some other entities have to plot along also.
Daily: Lets talk worse case scenario, lets just say that right now you don’t get this and you have to go back to the Commissioners. When can, what is the longest time period we are looking at to help the Judge. Then I want to know what …..(interrupted)
Worthington: Commissioners meet tomorrow.
Daily: I want to know what we can do in the shortest process to help the Judge?
Worthington: Commissioners meet tomorrow. I was planning on telling them tomorrow what happened today. That would be the first time I could meet with them and at that point and time I think they would decide how to go forward on this. I would get information as to what way they want to go forward on this and whatever that way is I would communicate it with the City and we would ask for that.
Jordan: Let me ask you a question. You are the County’s attorney?
Worthington: Okay.
Jordan: Say, Frizzell applies for a subdivision in the County. Do you require him to create a separate tract for the roadways?
Worthington: I haven’t seen any of those come through yet. We don’t have those. We have the provisions for them, but that is not something that happens out in the County areas. It is a lot of farmland. I see a lot of splits for people wanting to build a property for a son, a daughter, a family member, that type of thing.
Jordan: I am sure you have a procedure in your Planning Code, don’t you?
Worthington: I don’t know what that procedure is off of the top of my head.
Jordan: The City has their procedure, we have followed it for years and years and years and it has worked well. Basically what the Commissioners are asking us to do is to deviate from our policy to please them. I don’t see how we can legally do that because you cannot meet the standards set forth in our code to get a variance. Am I far off from that?
Wagner: That is the question that I asked.
Fisher: There are two ways you can do this.
Wagner: No, wait a minute, what Tom was saying. I asked the question first if this narrative was in compliance with the six questions that we have to apply the standards to to pass or deny this application. Reading this, in my mind, I believed it did. However, you pointed out that Hakes was not a non-conforming use so there is no, that throws one standard out and Tom is correct that if it doesn’t meet all of the standards, we can’t legally pass your application.
Worthington: I understand that.
Wagner: Okay.
Spencer: I was not aware also, that you had a meeting yesterday on this topic?
Worthington: It was the joint meeting between the Commission and the City Council. This was one of the things that was discussed.
Wagner: I just want to state, I would hope, being on City Council, I would hope that this doesn’t create a roadblock for what we want to see happen up there. I would hope that the Commissioners don’t look at it in that fashion that is a roadblock.
Worthington: I will relate to them exactly what you have said, that message will be made to them.
Wagner: If you can meet the applicable standards, I have no problem.
Jordan: I don’t think anybody on this Board, anybody in this City wants to hold up that up there. I can see no reason why the County can’t comply with our Zoning Code and we can move this forward. I just don’t understand that problem. Mr. Dues stated it to, he didn’t want to create, have to do something wrong to get what he needs and I don’t thin he has to. I think it is just going to be a matter of trust that this is the way we have done it for years and years and years. It has worked well and we have had no problems with it. Lets move forward and then we can get the plat done and they can transfer it to whoever they want and they can send it to the Youth Foundation and they can start building.
Fisher: There are two ways they can do it. Bring it back with just the subdivision, the 4.552 acre tract. I still have the “for record purposes only” plat, signed by the Church and signed by the Hakes, in my office. The only people that didn’t sign it was the County. If they sign off on that, that roadway is dedicated “for record purposes only.” The County is assured that it will be a road. Then the 4.552 acres gets transferred to the Youth Foundation, on the subdivision plat it will be indicated that the .552-acre is going to be a road. When the hospital builds it the City will officially accept it as a road. The other option is they put a dedication “for record purposes only” on their minor subdivision plat.
Dues: With the full acreage?
Fisher: Yes, the 4.552 acres. Probably, if they do it, if they would sign that plat, the Church has already signed it, or else the Church is going to have their own plat done.
Wagner: You have a record in your office that the County Commission can sign off on?
Fisher: The Church has signed, the Hakes have signed, the only people that wouldn’t sign was the County.
Wagner: Is there a spot on there for them to sign?
Fisher: Yes.
Wagner: If we could convince them to sign off on that, it is a done deal.
Fisher: It is dedicated. They come back next month with, I can call Steve Pope, Katie can call him, have him do a 4.552 acre tract. He can show on there that there has already been indicated, for record purposes only for roadway, the County transfers 4.552 acres to the CIC to the Judge and it is done. The have the guarantee that the road is there and the City won’t officially accept it as a street until the hospital builds it.
Worthington: If that is the Board’s decision, I will relate all of that information back to the County.
Spencer: I sympathize with you in your situation, I’ve got some history, I can remember when this thing first came up, a lot of what has been said tonight, a lot of it is true on both sides.
Dues: In my job I have to be patient, Stan.
Fisher: I know Steve Pope, if he can have the plat done by the next meeting, we are done. A minor sub, it is just them.
Daily: Does that work then for you Judge, time wise for you?
Dues: Gentlemen and ladies, I appreciate your concern, I am a lawyer at heart and I never want to do anything wrong. I never want to put clients in positions of uncomfortableness. My goal is to get the four acres, dedicate the land because Kettering wants it and maybe we will have a hospital some day and all the great things, however long it takes.
Wagner: If we do it the way that you suggested, the quickest way, and it is a minor sub and it is all approved next month, it goes into effect immediately?
Fisher: The minute they record it.
Deffner: That would require them to sign off on the plat and come back next month with the acreage shown for dedication?
Fisher: You come in, have Steve either bring the mylar with you, because Tom is here and he can sign it right at the meeting. We can get the other signatures we need the next day and then you can have it the next day and you get it filed and you are done. You can have an effective subdivision by the 15th.
Wagner: It sure seems like that is the way to do it. The line of least resistance and clean.
Daily: If your Board objects to this, would you let us know immediately?
Worthington: I will let you know immediately. I will talk to them about it tomorrow, my plan is to talk to them about it tomorrow and then as soon as I find out I can let you know, I will give you a call.
Wagner: Is there such a thing that if there is a problem that we can call a special Planning Board meeting to do something if we have to?
Daily: Yes.
Deffner: Is your meeting open to the public tomorrow?
Worthington: The meetings are always open to the public.
Deffner: What time is it?
Worthington: I haven’t set aside a time to be there, so I was just going to pop in over there and try to get in on the agenda at some point and time. I am not on the agenda. I am just going to try and go over there. I will call Connie tomorrow morning and see what time I can get in there.
Jordan: If you think it would help I would gladly take off and hour or so off of work?
Worthington: I don’t know.
Wagner: Since, there is this discussion going on, instead of denying the application, table it?
Fisher: I am in court all day tomorrow.
Daily: Katie, what is you feel? Do you think that what you have heard tonight that this process.
Worthington: I think, I am hoping that it will be okay. I am hoping, that would be my hope. The situation when these decisions were originally made were a lot different. I didn’t want to get into the other things but the situation was different. I am thinking since some of those questions that were out there now aren’t out there anymore, that hopefully it will be different when I go in.
Spencer: Especially when you can show them that they are not on the hook for anything.
Worthington: Yes.
Spencer: That should eliminate that. Rightfully, it should eliminate…..(interrupted)
Worthington: That was the biggest question is that they didn’t want to be on the hook for building the road.
Jordan: I don’t think they will be. If you do it that way they are not going to be. It is a clean way to do it, it is the way we all do it. All the developers do it.
Worthington: They are going to have to do it, it is going to have to come about some way or another and you are saying, the part B, that it doesn’t meet all of the requirements and I understand that if it doesn’t meet all of the requirements then that, whether to approve or deny, I understand that and so I will just let them know.
Jordan: Convey to them that we are willing to work with them and we want to get this project moving and this Board has all of the trust in the world.
Worthington: I will convey that message to them.
Daily: I was just sitting here, Katie, thinking, all of these things get rolling along and if you get someone down the road who wants to come back and challenge something, they want to challenge this Board on why they approved a self-created, non-conforming use lot, that is where we really need to avoid any future challenges. This sees very clean, what we are all talking about here that it would withstand any challenges. Like the Judge said earlier, he just wants this smooth and clean.
Dues: If I go to a bank and ask for a million dollar loan on a two million dollar project, 50% financing, I should be able to get it. You want your title clean and not able to be challenged.
Fisher: I would keep the minor subdivision tabled because if you don’t then they don’t have to apply under the new code.
Jordan: Table the variance at this time too?
Fisher: It is up to you whether you table it or hear it.
Jordan: I would feel more comfortable tabling it and then if we don’t need it they can withdraw it and it won’t have to go to the Appeals Board.
Worthington: That sounds fine.
Wagner: I move we table AB-05-20 variance for the Board of County Commissioners, Preble County. Harold Geeting seconded the motion and it passed as follows:
Ayes: Coleman, Spencer, Lane, Geeting, Deffner, Wagner, Jordan (7)
Nays: None
OLD BUSINESS:
Jordan: Does anyone have any old business at this time?
Coleman: What about the photography sign? It is still up there.
Daily: The photography sign is now legal. The hold up with them was ADA issues. They had them adjudicated in Columbus and then they could apply for the sign variance. They did and Bob went up and measured it and the square footage was right and everything. Until they addressed the one issue they couldn’t apply for the sign variance.
Wagner: How far are we along with the drawings from Kramer with the new maps and things?
Fisher: They are done. They have done the preliminary.
Daily: The next step on that Gary, is staff is going to go out and physically go street by street, lot by lot and do an inventory of, this is what the map says and what is the actual use. That will take a little bit of time. We will then bring that back to the Planning Board and see about the changes of zoning and make recommendations to Council so ultimately we will have a map that matches the (not audible)
Wagner: Where is that map. Who has it.
Daily: If you haven’t seen the map, it is very nice.
Ferriell: Where is that map? Gary was asking.
Wagner: I will see it after the meeting.
NEW BUSINESS:
Motion was made by Ron Coleman and seconded by Gary Wagner to adjourn. All ayes.
Meeting adjourned.
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Secretary Chairman