BOARD OF ZONING AND BUILDING APPEALS
March 27, 1997
Present: Ashlin Caravana, Bob Essman, Lon Herman, Greg Sharkey,
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
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.
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.
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
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.
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.
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
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
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
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
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
through the main entranceway to have a place where people can
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
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
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.
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 / - ')/)
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.
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.
Next Meeting: April 24