Granville Community Calendar

BZBA Minutes 3/27/1997

BOARD OF ZONING AND BUILDING APPEALS

March 27, 1997

Minutes

Present: Ashlin Caravana, Bob Essman, Lon Herman, Greg Sharkey,

Eric Stewart

Members Absent:

Also Present: Reza Reyazi, Village Planner

Visitors: Scott Rawden (Sentinel),Jeff and Sherill Jalbert, Joe

and Judy Charles, Guy Martin, Darryl Payne, Carl Wilkenfeld, Matt

McGowan, Maxine Montgomery, John Oney, Joe Ridgway, Steve Katz,

George Fackler, Tom Scono, Rose Wingert, Margaret Clayton, Phil

Wince, 3?15- N. Pearl, Dean Markle

Election of Officers:

MS. CARAVANA NOMINATED LON HERMAN AS CHAIRMAN; MR. STEWART

SECONDED, AND MR. HERMAN WAS APPROVED BY MAJORITY WITH ONE

ABSTENTION.

MS. CARAVANA NOMINATED GREG SHARKEY AS VICE CHAIRMAN; MR.

ESSMAN SECONDED AND MR. SHARKEY WAS APPROVED BY MAJORITY

WITH ONE ABSTENTION.

Minutes: February 27. 1997: Page 1, before Ms. Jalbert paragraph,

change to : A"n exhaust fan would be required . . .Ms .

Jalbert, who lives next door, stated that the building is 12"1-8"

from their property line."Line 8 from bottom, change "impost"

to impose. Page 2, last line under Jean Marshall paragraph,

change "spces" to spaces. Two lines down, "Don Contini stated

what while not addressing the use, a change in nonconforming use

should be forced to revert. . . ." MS. CARAVANA MOVED TO

APPROVE MINUTES AS CORRECTED; MR. STEWART SECONDED, AND MINUTES

WERE UNANIMOUSLY APPROVED AS AMENDED.

Citizens Comments:

After swearing himself in, CARL WILKENFELD stated that he

believes the village government is violating the Moratorium by

holding the Fackler hearing tonight and it is illegal to do so.

Copy of his memo attached to these minutes].Mr. Herman thanked

him and stated that he will make comments later about accountability

on this subject.

JEFF JALBERT asked about the legal directives on timing for

BZBA applications. He and his wife may be out of town when the

Gunther application is to be continued. Mr. Herman asked whether

Mr. Jalbert has spoken with Ms. Gunther and he said he was waiting

for her to contact him. Ms. Caravana stated that every

effort will be made to ensure a fair hearing and to let the

Jalberts know when it is scheduled. He could also produce a

letter or memo to BZBA if he is to be absent.

STEVE KATZ underscored Mr. Wilkenfeld' s comments regarding

the appropriateness of the Fackler hearing tonight because we

have a Moratorium in effect and the hearing violates the spirit

of the Moratorium. He urged the BZBA to table it.

ROGER KESSLER thought the hearing was very legal. The plan

would be an asset and he likes the convenience of the drivethrough.

Traffic studies prove there would be no problems.

MARGARET CLAYTON wants to go on record saying the Fackler

hearing is not in the spirit of the Moratorium at this time.

New Business:

Joe and Judy Charles, 726 Newark-Granville Road

The Charleses wish to build a one-story, vinyl-sided, twocar

garage 4' from the west property line to replace the caRQEL·rv'*c<.( 6,

Given the topograplhy, it is the best place to locate it.73 Mr. 94; 4

Drake, neighbor, has no problem with the proposal. The garage

would be farther away from the property line than the carport is

now.

Ms. Caravana asked whether the lot might be subdivided,

because it would be a tight squeeze, and Mr. Charles did not

think it very likely.

MS. CARAVANA MOVED TO ACCEPT THE PLAN AS PROPOSED. MR.

ESSMAN SECONDED, AND MOTION WAS UNANIMOUSLY APPROVED.

Ms. Caravana applied the criteria to the application:

A) That special circumstances or conditions exist which

are peculiar to the land or structure(s) involved and which are

not applicable to other lands or structures in the same zoning

district. The slope of the land precludes siting garage in

another location. There is an existing carport in the same

location, which encroaches even farther than the garage would.

Other garages in the neighborhood have similar circumstances.

B) That a literal interpretation of the provisions of this

Zoning Ordinance would deprive the applicants of rights commonly

enjoyed by other properties in the same zoning district under the

provisions of this Ordinance. Literal interpretation would deprive

applicant of the right to erect a garage as others in the

neighborhood have. Applicant believes approval of variance would

maintain the integrity of the property as well as the neighborhood'

s overall characteristic.

C) That the special conditions and circumstances do not

result from the actions of the applicant. The lay of the land

did not arise as a result of the applicant' s actions. The

carport is already present.

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D) That the grant of the variance will not confer on the

applicant any undue privilege that is denied by this Ordinance to

other lands or structures in the same zoning district. Building

this garage would not confer undue privilege. Other garages in

the neighborhood already encroach.

E) That the granting of the variance will in no other

manner adversely affect the health, safety and general welfare of

the persons residing or working within the vicinity of the

proposed variance. BZBA members can see no way in which this

criteria would be affected.

Old Business:

Dennis and Judy Guenther, 120 West Broadway

The Guenthers have requested a continuance of the public

hearing until April 24. Mr. Herman wants to ensure that all neighbors are notified in advance. He also would like them to

have a copy of the Guenther letter of March 27, which he believes

s respoent*o**the issues brought up previously. 05,

George Fackler, 1960 Newark-Granville Road

Mr. Herman stated that concerns have been expressed relative to the appropriateness of holding this appeal hearing now. The

Law Director' s opinions are advisory, so he checked with village officials for their input. Mayor Marshall has said to go ahead with the hearing and cited Res. 96-64 as basis. Ms. Caravana

read from a letter from Mr. Hurst, Law Director, to Mr. Hickman, Acting Village Manager, stating the appeal hearing is not in conflict with the Moratorium. Mr. Fackler has already received a conditional use permit. The Finding of Fact is not in conflict. After more discussion, members of BZBA determined that it is appropriate to hold the hearing tonight.

PHIL WINCE, representing George Fackler, stated that the haet atrhinegswitaes. to determine whether drive-throughs were appropriate They are seeking a fair and objective hearing on matters remanded by Village Council. He asked that anyone on the Board who does not feel a fair hearing can be ensured should step dteowctn.. Hearing no response, he called on Mr. John Oney, archi-

1) One of the objections JOHN ONEY heard regarded odors at the drive-through, so they moved the facility farther away. Mr. Wince checked distances at downtown cafes and found them to be about 22' from the curb. The Coffee Shop is closer. The Fackler proposal is much farther from the curb. 2) They agreed to landscape to provide more buffer area. 3) They will move the sidewalks somewhat to address concerns about safety. They are trying to design a more pedestrian-oriented plan, and they hope a

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way can be found to link up with the bikepath. 4) The drive - «

through will be open only when the businesses are open.

JOSEPH A RIDGEWAY, Traffic Engineer, was sworn in and said U

he performed two traffic studies. The first one in July, 1996,

the second after the remand notice. In answer to a question }29-

Mr. Wince, Mr. Ridgeway found no significant impact atfthe inter-.

section of Cherry Valley and NewarkG- ranville Road. M ,r/. Samuel/1 tr

son reviewed it also and did not disagree with these findingsc /f C ,

No street improvements were found to be necessary./ 67,<4. L j , -r

The reason for the second study was to answer some BZBA

questions and to fulfill other information in the Finding of

Fact. The second study was designed for the drive-through and

this was not true at the time of the first study. It was an

effort to improve trip-generation figures. The traffic count

figures were taken from a beerw/ine drive-through on 21st Street

in Newark, and results came out in favor of the Village. No

traffic would be more than we estimatedin--fact may be lower.

They came up with the result that drive-through portion would LLf·* r

generate 90 trips during peak hour. A deli/bakery is not a ON

1 convenience mart and would still generate,traffic of a retail

specialty shopland as a result there werd '24 trips per hour per 1&J*1sa,-m00e0assqi.nftt.he,ofrirasbtoustc2e0nanerwio;trtihpesy.looTkheednuamt btehres wweorrestabcaosuet the

scenario.

Wince, Mr.

In answer to a question by Mr. Ridgeway said a

fast-food drive-through would generate a lot of traffic. Locating

McDonald' s south of the intersection should not have an

adverse effect on Fackler' s. He added that if an convenience

mart were located here, it would generate a lot more cars.

With regard to the BZBA Finding of Fact, Mr. Ridgeway

thought that the statement that their traffic study "may grossly

understate the volume of traffic. . .is" unfair. Projections in

the second report, he stated, are more than fair, and Mr. Samuelson

found the same results. Lunch volume is not similar to fast

food and they thought there would be no impact at Fackler' s

during the noon hour. The afternoon peak hour should be looked

at instead.

There is no reason to believe, Mr. Ridgeway went on, that

there would be a nuisance or traffic hazard. Traffic arrives at

a random basis. He has watched traffic at two drive-throughs

near his office and has never seen a problem. Mr. Wince asked

him about handicap access, and he said most access is by way of

ramps. Drive-throughs are particularly helpful to handicapped

people, elderly, and mothers with children.

GEORGE FACKLER was sworn in. Mr. Wince asked whether it was

Mr. Fackler' s intention to build a fast-food drive through, and

he said No. He was asked to describe exactly what the facility

is going to look like, and Mr. Fackler said it would be an

upscale dining area with sit-down atmosphere. A bakery-deli also

will have sit-down dining. The drive-through is only one aspect,

a small aspect.

Mr. Wince stated that some of the issues he has to discuss

have to do with overall decision of the Board and the appeal.

Mr. Herman asked him to wait, since the comments he will be

giving us will be the ones made at the meeting on October 16.

Mr. Wince said that it is not their intention to be compared to fast- a food drive-through; in fact, while he does not accept a ban

on drive-throughs, if you look at the draft proposal of the

Cherry Valley Rapid Response Team, it does not apply to Fackler' s. Mr. Herman reminded him to keep to the October 16

meeting.

Mr. Wince had other comments: (1) denying Fackler' s a drivethrough

would be discriminatory because there are drive-throughs

at banks, gas stations, and at the Mill as well as Wendy' s. (2) There is a possibility of anti-trust violation because of Wendy' s drive-through. (3) There is no restriction in place at the moment against drive-throughs, and even if it comes up later, Fackler' s applied beforehand. (4) There is no evidence of nuisance, as suggested by BZBA' s Finding of Fact. 5) Regarding "takings,"

there is a possibility of litigation with regard to damages to Fackler' s. 5) You can' t use traffic as an issue to control

competition, or to say that a community does not need a particu- lar type of business. "Need" is not a zoning decision. We are

dealing with facts, not opinions. If the proposal is otherwise

proper, officials must find other ways to regulate traffic. Any development of the site will result in increased traffic, and that is what business is all about. Evidence that a facility

will generate more traffic is not sufficient cause to deny a conditional use. (6) Selling liquor is legal if you have the proper permit. Mr. Wince wanted to end his comments on a positive note: 1) Drive-throughs are very convenient. 2) The

design was made to respond to needs and requests of Granville. 3) We will spend a lot of money on the facility. 4) We' ve made changes requested and tried to cooperate. 5) Denying this

request will restrict the economic viability of the community. 6) The bakery will be open in the morning before the other businesses and more traffic is assumed then. There will be more ttirmaeff.ic at the restaurant at lunch but that is not a high traffic At dinnertime the bank will be closed.

Ms. Caravana asked Mr. Oney about the sidewalks removed to eliminate conflict with people crossing drive-throughs, and Mr. Oney said they are willing to make changes. There will be a sidewalk along Cherry Valley and shared curbcuts to future developments. Mr. Wince added that they are responding to Village Council_comments_and tF_tedto_center people' s coming

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through the main entranceway to have a place where people can

meet.

Ms. Caravana asked for clarification between the two traffic

surveys and how much area we were talking about. Is it reasonable

to compare this concept to a small beer/ wine carryout? Mr.

Wince would encourage people to sit in the restaurants. The

counts were made there because it was a busy street. Even if

traffic were increased, it would not require street improvements.

Ms. Caravana asked whether road counts take into account future

businesses, and the answer was negative. Mr. Ridgeway said

nothing changes existing traffic. In response to BZBA' s Finding

of Fact, they tried to break it down and that is in the revised

traffic analysis.

Mr. Wince stated that the applicant' s traffic studies different in the estimate of number were of vehicles. In answer a

question by Mr. HermanM,,r. Wince would say the Finding of Fact is unreasonablem--/

Mr/H.erman asked how much time is consumed waiting for an ordera,n/d the answer was one minute to one minute and a quarter. If there are 8 cars lined up, Mr. Herman went on, then each could wait 10 minutes or so. Mr. Fackler thought there would be

different clerks and cars would be moving along smoothly. Mr. Wince thought people should call ahead and have it ready to pick

UP.

Ms. Caravana asked whether there were other ways to accommo- date handicapped persons, and Mr. Ridgway stated that businesses

are required to furnish spaces, and it' s more convenient for these people to sit in their cars. Separate windows for handi- capped people are not common. She stated that drive-throughs at McDonald' s are critical to economic viability. What factor would limit the traffic at Fackler' s so much less than other drive- throughs, and Mr. Ridgeway referred to the trip generation at their peak hour. These other facilities are open longer and rely on a steady stream of traffic after peak hours. Mr. Wince stated

that a Wendy' s grosses a million dollars per year, and the one at Cherry Valley is $1. 7. The average beer/ wine drive-through

grosses much less than a fast-food drive-through. Ms. Caravana

stated that ITE studies say there is potential for more traffic and necessity for road improvements. She is trying to determine reliability of traffic estimates. Mr. Ridgeway likes to do at least two. He stated that a convenience mart would have high traffic movement.

Mr. Stewart asked why the intersection at Rt.16C/herry Valley was not considered, and Mr. Ridgeway said that Mr. Tail- ford said it was not necessary. He thought one-third of the traffic would come from the major intersection.

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Mr. Sharkey understood why the beer/ wine drive-through was

chosen, but with respect to the noontime peak, he asked what kind

of food service is offered there. Mr. Ridgeway thought the same

food would be offered at noon and night. Mr. Wince added that

they used that facility because they knew it would have high trip

generation. Mr. Sarkey thought they were comparing apples to

oranges and the estimate is the only basis for lunchtime comparison.

Mr. Ridgeway said they were using a higher rate. Mr.

Wince said that Mr. Samuelson used a convenience store which has

a higher trip generation rate. They were trying to find something

with a lot more traffic than they expected. Mr. Ridgeway

thought there would be less traffic at noon because people would

be off at work, and lt would have less traffic than Wendy' s. Mr.

Herman asked whyis-- it because of the product mix sold there,

and the answer was yes. He asked whether product mixes ever change, and Mr. Wince said business will react to demands.

Mr. Reyazi was sworn in and Ms. Caravana asked him about

Macrc.esRseymaazni asgetamteendt athnad twbhaestehder the entrances were appropriate, and, A.j on current estimates they are GW- f- neatt with whatisb-een proposed. She also asked whether Mr.

Fackler would be paying for any road improvements and whether

that would sway us in terms of traffic concerns, in case the numbers suggest more traffic. Mr. Reyazi is concerned about the

impact if the traffic studies represent a true estimate. Mr. Wince stated that those issues were not brought up before, but Ms. Caravana based her comments on new traffic numbers, which are increased from the numbers last time. Mr. Wince said that both

traffic engineers have stated there would be no substantial

impact nor need for road improvements. Mr. Reyazi wanted to clarify with Mr. Ridgeway the omission of the Rt. 16C/ herry Valley intersection and said he had no documentation on this.

Mr. Ridgeway affirmed that Mr. Tailford said to base studies on the Newark-Granville intersection.

remandMedr.FHinedrminagn asked Mr. Reyazi to give his evaluation o' f the of Fact. 1) Mr. Reyazi stated that there was a second traffic study review done. It is pretty much along the

same lines as Mr. Samuelson' s but raises more concerns regarding level of service and lack of scope. (216Also, ilrdoesn' t make any ddirfifveere-tnhcroeugwhh.at the square footage is 69 opposed to the beerw/ine Even if they were different, we would still come up with the same figures and he does not think that is accurate. 3) He is concerned about the lack of consideration of future development aspects. Mr. Wince objected because the issue of sfuiotunrse. development and Rt. 16 was not the subject of the discus- Mr. Reyazi can understand why the Rt. 16 intersection was naogtainc.onMsri.deRreeyadtzh-ie-dreidisnoat f2i,n0d00 car average. f(Mr. Wince objected 7¢ find the addition of the trafficany new evidence. He did not 4 e'J, count to be convincing. The beerw/ine drive-through had a food operation at one time. He wondered _about _the system of operation _in terns _of cars coming _

f i7-- 9 0»C<0-\c O I\ \ »1-0,r l-0%-5 / - ')/)

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through to be served and how long it would take. He did not find

any new evidence that accurately represents a convincing drivethrough

aspect. He did not find them comparable. Traffic is a

judgment call. Wilbur Smith said the change to level of service

D would not be acceptable. Mr. Ridgeway said that people pull

figures out of reports that are inconsistent. This is a worst

case scenario. Mr. Ridgeway said that Wilbur 4 Smith did not use 1 > th ,e 3,5 trip generation from the delib/akery. He came up with 14 6632TTEional cars and he misused the f igures. Mr. Reyazi said Mr. Smith is using the worst-case scenario with the right-in 1

out access. This is similar to what he was talking about rk*461 :,

Semaritlhier. Mr. Wince thought that Level C is 20-30 , 5iIEt'O/,*. says it' s 10-20. Twenty eara could be C or D.

s.ef.*

Mr. Herman recommended that he has not had time to review

all the paperwork received, but Mr. Wince speaks at the same time and won' t let him finish. Mr. Herman let Mr. Wince ask more

questions of Mr. Reyazi. He first asked whether Mr. Reyazi was a traffic engineer, and the answer was No. He asked whether Clyde

Williams reviewed the first and second traffic studies and then AN, asked if Mr. Reyazi sent m- e a FAX saying, I" am contemplating asking another engineer to review this study,s"o the village thwiriecde.Clyde Williams twice and got results twice that agreed Didn' t Mr. Samuelson on two occasions indicate the development

would have no substantial impact on traffic and that no Noon. -site improvements would need to be made? Mr. Reyazi answered.

Mr. Herman stated that what is being suggested is there are issues related to judgment calls between Mr. Reyazi and earlier traffic engineers.

Mr. Wince stated that a July 17 memo from Williams to Mr. Hickman indicates the development traffic will have minimal impact and no roadway improvements will be needed at this time. Mr. Reyazi agreed that it said that. Mr. Wince asked whether any other business in that SBIb)e(e\n cited as nuisance because of traffic. Mr. Reyazi was not aware of any.

Mr. Stewart asked whether Mr. Reyazi knew of any procedure for citing anyone for nuisance, and the answer was No, but he has been working on plans to alleviate problems in the future. Mr. Wince thought that village planners can cite anyone for nuisance; even Wendy' s can be cited. He added that Fackler' s was cited for violation of the Moratorium. Has anyone else been cited for such asked him to keep to relevant paragraphs saying Mr. Wince wanted to go on record as these items refer to the Moratorium and that Mr. Herman has cut him off from asking Mr. Reyazi about traffic matters. Mr.·Wince continued by asking Mr. Reyazi, if you have a traffic problem, you have the ability as village planner to notify that person or business that_ that business is creating a nuisance, and _

Mr. Reyazi said that depends on what you mean by nuisance.

Mr. Herman closed the session by stating that he has 32

pages of paper and lots of notes and testimony to review.

Village Council has charged us to examine all evidence and he

thinks it appropriate to consider this information further and

come up with a vision within 30 days. Other members of BZBA

agreed, and the meeting will be April 24.

Adjournment: 10:15

Next Meeting: April 24

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