Granville Board of Zoning & Building Appeals
December 10, 2015
Call to Order: Mr. Gill called the meeting to order at 7 p.m.
Members Present: Kenneth Kemper, Larry Burge, Neal Zimmers, Bradley Smith and Jeff Gill.
Members Absent: None.
Also Present: Alison Terry, Planning Director, Michael King, Law Director and Steve Stilwell, Village Manager.
Visitors: Barbara Franks, Dan Rogers, Sam Sagaria, Steve Flowers, Bob Johnson and Andy Franks.
Citizen Comments: None.
Description of Procedure: Mr. Gill provided a description of the procedure for the meeting as follows:
Note: The items listed on this agenda under New Business are open to the public, but are not public hearings. Any witness offering testimony or presenting evidence at a hearing shall be placed under oath prior to offering testimony or evidence. The following persons may appear at hearings as parties and be heard in person or by attorney:
(1) The applicant;
(2) The owner of the property that is the subject of the application, if the owner is not the applicant or appellant;
(3) The owner of property that is adjacent or contiguous to the property that is the subject of the application; and
(4) Any other person who claims that a direct, present injury or prejudice to a personal or property right will occur if the application is approved or denied.
A person authorized to appear and be heard may:
(1) Present his or her position, argument and contentions;
(2) Offer and examine witnesses and present evidence in support of his or her position, arguments and contentions;
(3) Cross-examine witnesses purporting to refute his or her position, arguments and contentions;
(4) Offer evidence and testimony to refute evidence and testimony offered in opposition to his or her position, arguments and contentions;
(5) Proffer any evidence or testimony into the record if such evidence or testimony has not been admitted by the Board.
119-123 South Prospect Street –Barbara Franks - Application #2015-23: The property is zoned Village Business District (VBD) and is located within the Architectural Review Overlay District (AROD). The request is for review and approval of a variance to reduce the required number of parking spaces from four (4) parking spaces to zero (0) parking spaces for the additional occupancy of the first floor only of the rear accessory structure for a restaurant use, and totaling seven hundred sixty-eight (768) square feet of space.
Swearing in of Witnesses: Mr. Gill swore in Barbara Franks, Sam Sagaria and Alison Terry.
Barbara Franks, 121 ½ South Prospect Street, Granville, Ohio stated she was requesting the same kind of parking variance given to Granville Inn, Del Mar and other businesses. Her retail area has decreased and she would like to have the ability to have handicapped seating in her barn. Mr. Gill asked for clarification about handicap seating in the barn. Ms. Franks named Mai Chau, Day Y Noche, Moe’s, The Broadway Pub and Brews as having no requirement for parking and she wants the same as those businesses, as approved by the Village. Mr. Zimmers asked if she was expanding her business. Ms. Franks said “no, she wanted the barn space ‘back’ because it was taken away from her. Ms. Franks made statements about a “vindictive neighbor who calls the police.” Mr. Gill asked Mr. King about this accusation and was told that an injunction was filed against Ms. Franks in November. Mr. Zimmers asked if this application was really for an expansion for a beer garden. Ms. Franks denied that was the intent, that this request was to regain seating that was “taken away from her” since when she has lost $220,000 in business income. Ms. Franks claimed she has spent all her inheritance to build up her business. She complained of persecution by the village residents and other businesses. Mr. Zimmers again tried to ascertain if the application was for handicapped seating or expansion. Mr. Gill asked Mr. King if the business (Taco Dan’s) formerly had approved seating in the barn? Mr. King said, “No”. The barn was originally approved in 2009 as an accessory building as storage for the Footloose business (retail). Ms. Franks interrupted Mr. King. Mr. King continued that there was an injunction against Taco Dan’s because the business was exceeding the approved footprint. The Village never approved bar use for the barn. Mr. Gill stated that the BZBA does not handle seating issues. Ms. Franks stated that County Health Dept. guidelines were followed when designing handicapped seating in the barn.
Mr. Smith asked for the chronology of the 2009 approval for the accessory building for retail. Mr. King stated that the barn, as an accessory use, did not require extra parking in the record from 2009. It was not appealed to the Common Pleas Court. March 17, 2012 Taco Dan’s was opened and began serving in the parking lot and the barn without Village approval. The business was told NOT to serve outside the house or in the barn. Ms. Franks maintained that the barn was solely for handicapped seating and mixed retail. Mr. Zimmers referred to the last meeting testimony that the barn was not used for solely handicapped seating. Mr. Gill said that it does seem like the request is an expansion. Ms. Franks said that the Village gave back 4,700 square feet of restaurant in the house. Mr. King stated that Village approved 400 square feet and the owner then expanded to most of the interior of the main building and the outside rear patio area, then onto the front porch. The Village filed an injunction after several complaints, police responses and requests to the owners by the staff to do business with in the building. Finally, paperwork was submitted by the owner and approved by the Village to expand the business to 4,700 square feet, all within the main building. The application was approved by the Village to maintain the barn as an accessory to the Footloose retail store, not as a primary use for retail and restaurant.
Mr. Smith asked if the barn is an accessory can it be used as a restaurant? Mr. King replied that section 1157.14 states no commercial usage may be from an accessory building under Granville Law. Mr. Smith asked if this request is for a change of use. If so, then there is a need for a variance on parking spaces. Mr. King answered that a change of use is now an administrative approval, but when a request for a change of use triggers other issues such the need for a variance, those issues must be resolved before the change of use can be approved. Ms. Franks complained of her neighbor’s disapproval of the business. She also wants more lighting. Mr. Gill stated there is lighting in the back.
During these remarks there were some vocal interruptions from members of the audience among the Franks’ supporters. Andy Franks, 210 E. Maple, was sworn in and stated he is part owner of the business and son to the owner. He stated in so many words that the business was being discriminated against and that other businesses and private requests in the area have gone smoothly and wondered why objections were being brought up in this meeting. Mr. Gill explained that the BZBA is the body that deals with the Village’s right to address objections and concerns. Mr. Franks continued to challenge the board re: their previous decisions on other business applications and was not accepting of Mr. Gill’s explanation. Mr. Zimmers commented on the lack of similarities of business properties in the same district. Mr. Gill explained the BZBA looks at each case individually. Mr. Zimmers pointed out that the residences in the area are markedly different from 134 S. Prospect. Mr. Franks said the criteria are identical. Mr. Gill said that the BZBA will decide that.
Dan Rogers, 210 E. Maple was sworn in. He said that every bar and restaurant in town has expanded. He said that only Granville Inn and the Buxton have been granted outside seating.
Bob Johnson of 218 E. Elm Street asked to speak. Mr. Gill asked if his property was contiguous to the Franks property. Planner Terry said “No”. Mr. Sam Sagaria, of 117 S. Prospect asked if he, a contiguous owner, could grant Mr. Johnson permission to speak. The answer was yes, so Mr. Johnson was sworn in. Mr. Johnson asked if the variance is approved, does that approve the rear structure for what they want to do in the barn? Mr. King said that if change of use is approved, then the administration has to process the approval. Mr. Johnson addressed the handicapped use of the structure. He said his concern was pro-business and pro-community. If there are people eating, drinking, waiters going from one structure to the other, something is going to be consumed in between, then it becomes a beer garden. This is not good for the neighborhood. Mr. Gill stated that would be a liquor commission problem. Mr. Johnsons asked if handicapped patrons were the concern, why not have that area on the inside of the house? Mr. Burge asked for clarification about whether liquor would be served in the outdoor area. Mr. King said that currently there is to be no outdoor service or consumption of alcohol outside the main structure. Mr. Johnson pointed out that it was difficult to enforce.
Mr. Sagaria’s input was requested by Mr. Gill. Mr. Sagaria said that the Village was originally told that a 400 ft. taco restaurant was the original plan, and it was to be closed by 7 PM. Now the entire house is used as a “beer joint” until 1 AM and later and it has a ‘frat house’ environment. He does not want a beer garden in the back. Mr. Gill said that was not what the board was approving. Mr. Sagaria said that the Franks want a fence, then they can expand to a beer garden and barn and first and second floor. Mr. Gill said to Mr. King that something like that could trigger additional parking requirements. Mr. Zimmers asked if the issue at hand was granting a variance on parking aside from expansion. Mr. Gill said he does hear expansion as a concern. Planner Terry said that the entire street is not commercial, Mr. Sagaria’s home is single family residential and there are 3 residences facing the business. Mr. Smith asked if Mr. Sagaria wanted to change from residential to commercial would he need a permit? Planner Terry answered “Yes”.
Mr. Smith asked Mr. King if a change of use was granted could it be limited to handicap or not? Can anyone sit in that area? Mr. King said that legally the application only asked for handicapped seating but it would be practically impossible to enforce. Discussion between Mr. King and Mr. Smith about change of use approval and appeal. Mr. Zimmers asked what the handicap thing was all about. The discussion about recouping business is an expansion of business, not about handicapped. Mr. King said that the application could have said they wanted to expand business. It is up to the BZBA to determine credibility or not. Mr. Burge asked Mr. Gill whether granting the application gives the go ahead for change of use.
Mr. Smith said that the Ohio Supreme Court states that such cases should consider if the question can be obviated by other means. Feasibility of handicap access may be handled in some other way. The properties on Broadway have ramps, for example. Ms. Franks said it would require a 20 - foot-long ramp with a rise of 27 inches to get a wheelchair to the first floor. There is no place for that and a lift would cost fifteen thousand dollars. She had already spent 20 to 30 thousand dollars to place a handicap accessible bathroom in the barn. Mr. Gill observed that accommodation is a side effect of expansion. Mr. Burge asked why Ms. Franks made all those capital changes in the barn without approval for use. Ms. Franks said that in 2005 they wanted to update the barn and have a restaurant. Dan Rogers wanted to update the 1800 era barn but because it took so long to come back and get a change of use permit they proceeded to follow the state requirements to make such improvements and then were told NO by the Village so they ended up in the house. Mr. Smith asked how people would access the rear structure. They would have to use the PNB parking lot or the driveway shared with Mr. Sagaria. Ms. Franks talked of negative hearsay from neighbors.
Mr. Smith mentioned that the staff has expressed safety concern regarding use of the shared driveway. Mr. Gill asked Alison for input. She said the staff report discusses the idea of handicap use and the need for such usage to be closed by 11:00 PM, alcohol would need to be in the rear of the structure and not be outside the structure except as carried by servers. There are no special conditions. There would be an inability to provide parking. There is limited accessibility to the structure, as faced by many other businesses that have put in ramps. Others also have zoning and practical difficulties. More details are available in the staff report. Mr. Gill asked how staff would respond to the zero parking variance. Planner Terry replied that N. Prospect has been a mix of uses in the past as principle uses. Applications to change from retail to other usage has had grandfathered parking. Ms. Terry gave example of the Pub fronting directly onto the sidewalk on the Pub Right of Way, principal use of retail occupied by employees with the cash register where patrons are and no spillover from the property.
Mr. Zimmers observed that the principal use of this property is asking for zero parking, so we are being asked to continue zero parking but is parking request to deny expansion? Dan Rogers loudly objected, saying the board is asking him to spend 50 thousand dollars that the County Health Department already approved. He said the Board is going against the handicapped patrons. He has endured financial hardships over attorney fees and more. He just wants to comply with handicap needs. Ms. Franks said that when she bought the property the barn was leased to another person. For 35 years it was used for other things. She bought it as a common piece of property. She had no knowledge of variances how it affects the neighboring area. Mr. Gill pointed out that the property title would have told her that. Ms. Franks said remodeling the barn increased their property taxes, and then the Zoning Inspector reduced the taxes when the barn use was “taken away.” She feels her rights have been removed.
Mr. Gill asked Mr. King “Are we grounded? Have we made the record clear and allowed everyone to speak?” Mr. King had additional information which he passed to the board and the applicant. Relevant to the third Duncan Factor regarding how a business is run and its effect on a neighborhood.
LD-1 is a copy of a public record from municipal court 15CRV352 regarding Ms. Franks’ disturbing the peace in March of 2015 at the business location. It concerns a late noise complaint transferred by Ms. Franks from Mayor’s Court to Municipal Court. Ms. Franks applied for a diversion program which was approved on August 19, but Ms. Franks was terminated from that program when she was subsequently arrested and jailed on open container and obstruction of official business charges (to which she ultimately pleaded Guilty). LD-2 and LD-3 were charges which are part of the record involving charges and trials and a letter to the Franks.
Mr. King reminded the board of how the business has been operated, the effect on the neighbors, documented disregard for the law and the way they do business, should the variance be approved as an expansion, given history, the problems will not get better. Mr. Gill asked if there were any questions for Mr. King from the board. There were none.
Dan Rogers objected strongly to the information brought up and was outraged that only one neighbor objected, etc. Mr. Gill said he has spent money at the business and enjoyed the food, and the board has discussed how to help them. The board has an obligation to acknowledge the number of complications. Mr. King would have been remiss to not bring the evidence to the board. At that point, the presentation of testimony and evidence concluded.
The board decided to hold the application over as some members would like to review the April minutes and think about their decision. Mr. Zimmers moved to hold the matter over to January 14, 2015 meeting, seconded by Mr. Kemper. Roll Call vote Kemper (yes), Burge (yes), Zimmers (yes), Smith (abstain) and Gill (yes). Motion passed.
A three - minute recess was taken before considering the next item on the agenda.
232 East Elm Street - Steve Flowers of CS Construction Group; on behalf of Bruce & Lisa Westall - Application #2015-166: The property is zoned Village Residential District (VRD) and is located within the Architectural Review Overlay District (AROD). The request is for review and approval of a variance to increase the maximum height for an arbor from six (6’) feet to seven feet seven inches (7’7”).
Steve Flowers, 1360 Loudon Street, Granville, Ohio, General Contractor, explained the plan to install air conditioning and a generator on the east side of the property. There is a wish to add a fence and an arbor, as well. Mr. Gill asked if the fence would be purple and was told “No”. Mr. Gill asked if neighbor Laura Frame had been spoken to and was told that she had been and has no objections. Mr. Burge asked about the height of the arbor and was told that the arbor has a gate for access to the yard and therefore must be taller than the fence. There is no problem with the project because it is within 10 feet of the side lot line, according to Planner Terry.
The BZBA reviewed the following Standards and Criteria during their discussion of Application #2015-166:
a. That special circumstances or conditions exist which are peculiar to the land or structure(s) involved Mr. Burriss stated FALSE; all other BZBA members concurred with Mr. Burriss and which are not applicable to other lands or structures in the same zoning districts. Mr. Burriss stated FALSE; all other BZBA members concurred with Mr. Burriss.
b. That a literal interpretation of the provisions of this Zoning Ordinance would result in practical difficulties for the owner of the property. The BZBA unanimously agreed this criteria was TRUE.
The factors to be considered by the Board in making this determination are:
(1) Whether the property in question will yield a reasonable return; Mr. Burriss stated TRUE; all other BZBA members concurred with Mr. Burriss.
Or whether there can be any beneficial use of the property without the variance. Mr. Burriss stated TRUE; all other BZBA members concurred with Mr. Burriss.
(2) Whether the variance is substantial. Mr. Burriss stated FALSE; all other BZBA members concurred with Mr. Burriss.
(3) Whether the essential character of the neighborhood would be substantially altered, Mr. Burriss stated FALSE; all other BZBA members concurred with Mr. Burriss or whether adjoining properties would suffer a substantial detriment as a result of the variance. Mr. Burriss stated FALSE; all other BZBA members concurred with Mr. Burriss.
(4) Whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage). Mr. Burriss stated FALSE; all other BZBA members concurred with Mr. Burriss.
(5) Whether the property owner purchased the property with knowledge of the zoning restriction. Mr. Burriss stated TRUE; all other BZBA members concurred with Mr. Burriss.
(6) Whether the property owner’s predicament feasibly can be obviated through some method other than a variance. The board members voted 2 True and 3 False.
(7) Whether the spirit and intent behind the zoning requirement would be required to be observed and substantial justice done by granting the variance. Mr. Burriss stated TRUE; all other BZBA members concurred with Mr. Burriss.
c. That the special conditions and circumstances do not result from the actions of the applicant. The board members voted 2 False and 3 True.
d. 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, Mr. Burriss stated TRUE; all other BZBA members concurred with Mr. Burriss; and not diminish or impair established property values within the surrounding areas, Mr. Burriss stated TRUE; all other BZBA members concurred with Mr. Burriss; and not impair an adequate supply of light and air to adjacent properties, Mr. Burriss stated TRUE; all other BZBA members concurred with Mr. Burriss; and not unreasonably increase the congestion in public streets. Mr. Burriss stated TRUE; all other BZBA members concurred with Mr. Burriss.
e. In granting a variance, the board may impose any requirements or conditions regarding the location, character, and other features of the proposed uses or buildings or structures as the board deems necessary to carry out the intent and purpose of this Zoning Code, and to satisfy the other conditions set forth in Division (d) of this Section. Each member of the BZBA agreed that there are no special conditions.
Mr. Smith made a motion to approve Application #2015-166, as submitted. Seconded by Mr. Burge. Roll Call Vote: Smith (yes), Kemper (yes), Burge (yes), Zimmers (yes) and Gill (yes). Motion carried 5-0.
Findings of Fact
232 East Elm Street – Steve Flowers of CS Construction, on behalf of Bruce & Lisa Westall - Application #2015-166: Approve Findings of Fact and Associated Standards and Criteria. The Board of Zoning & Building Appeals found the request to be consistent with The Granville Codified Ordinances Chapter 1147, Variances and Chapter 1187, Height, Area and Yard Modifications and hereby gives their approval of Application #2015-166.
Mr. Kemper moved to approve the Findings of Fact for Application #2015-166. Seconded by Mr. Smith. Roll Call Vote: Smith (yes), Zimmers (yes), Burge (yes), Kemper (yes) and Gill (yes). Motion carried 5-0.
Motion to Approve Meeting Minutes:
Mr. Gill suggested holding over the BZBA meeting minutes for April 30, 2015 for review. Board members all agreed that would be the best thing to do.
Mr. Kemper made a motion to approve the BZBA meeting minutes for October 8, 2015. Seconded by Mr. Burge. Roll Call Vote: Smith (yes), Burge (yes), Kemper (yes) and Gill (yes). Motion carried 4-0.
Motion to Approve the 2016 Board of Zoning and Building Appeals Meeting Schedule:
Mr. Burge made a motion to approve the BZBA meeting schedule for 2016. Seconded by Mr. Kemper. Roll Call Vote: Kemper (yes), Zimmers (yes), Smith (yes), Burge (yes) and Gill (yes). Motion carried 5-0.
Mr. Gill stated that he and Board greatly appreciate the time Alison Terry has spent with the committees, Mr. Kemper said her professionalism and knowledge has been excellent and Mr. Burge will miss her and wishes her the best. Mr. Zimmers reiterated the same with thanks.
Steven Stilwell was present and thanked Alison for her service, announcing an open house for her on Friday December 18 from 1 to 3.
There has been no successor found yet for the planner job. Three applicants looked suitable on paper, as reviewed by Mr. Burriss from BZBA, a member of the Village Council and a member of the Chamber of Commerce. One applicant was rejected, one withdrew and one was not qualified. Search would begin again the following day (December 11, 2015). There are some discussions between the chair of the GPC and the BZBA as to how to carry on in the meantime. They intend to be deliberative in their approach and do a good job for the Village.
Motion to Adjourn
Mr. Zimmers made a motion to adjourn. Seconded by Mr. ____________. Motion carried 5-0.
The meeting adjourned at 8:55 p.m.
Next Meetings (Tentative):
January 14, 2016
February 11, 2016