Granville Community Calendar

Council Minutes July 16, 1997

July 16,1997
Mayor Marshall convened the meeting at 7:33 p.m.
Those responding to the roll call were:
Councilmember Eisenberg
Councilmember MeGowan
Councilmember Montgomery
Councilmember Rader
Vice Mayor Freytag
Mayor Marshall
Law Director Hurst
Manager Hickman
Councilmember Rader moved to excuse absentee Councilmember Bellman. Seconded by Councilmember McGowan. Motion Carried.
A public hearing was held on Ordinance No. 149- 7.A "n Ordinance To Vacate Certain Alleys Adjacent To Sunrise Street."
No one appeared to speak for or against Ordinance No. 14-97. Mayor Marshall closed the public hearing at 7:34 p.m.
The minutes of the regularly scheduled meeting of June 16, 1997 were presented for review. Councilmember Eisenberg moved to approve the minutes as submitted. Seconded by Councilmanber Rader. Motion carried.
The Mayor's Report for the month ofJune was presented for review. Mayor Marshall directed the clerk to file the report. A copy ofthat report is attached as part ofthese minutes.
Councilmembers Montgomery and Rader recognized the prompt and coordinated effort Ly ChiefCaitnal in response to questions raised during the June 16 Council meeting.
The Manager's Report for the month ofJune was presented for review.
Councilmember Eisenberg made reference to the increase in wastewater treatment during the month ofJune. Manager Hickman explained that wet weather and infiltration problems were the main cause for this increased flow.
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Councilmember Rader moved to accept the report. Councilmember Eisenberg seconded.
Motion carried. A copy of said report is attached as part ofthese minutes.
Those signing the register were:
See attached list
Dorothy Garrett of 45 Donald Ross Drive commended the Water Department for their prompt
response in drawing attention to excessive water usage at a neighboring house.
Margaret Clayton of 328 Fern Hill stated that after attending two previous BZBA " drive
through"work sessions,she suggests that traffic nuisance seems to be a major concern and should be
considered by Council before rendering a decision for or against the Fackler appeal.
Carl Wilkenfeld of 317 E. Elm St. stated his support of the Fackler project while opposing the
drive through. He asked Council to uphold the BZBA decision adding it would arbitrary be capricious and to overturn this conditional use decision based on the SBD zoning ordinance which does not permit drive throughs. He then cited the Bexley case law,which had been distributed to Council members,questioning its relevance to this appeal. His hope is that Council will review the BZBA hearings,finding of facts,and meeting minutes before rendering a decision for this appeal. At this time,Mayor Marshall noted Mr. Wilkenfeld had exceeded the five minute time limit.
Dean Markle of 98 Bantry St. expressed his support in the beauty of the architecture for the Fackler project,however,he feels drive throughs are not pedestrian friendly. He then commended the BZBA for a wonderful job in outlining the facts. Subsequently,he feels the drive through should be denied as it will bring excessive traffic flow from Rt.16. He pointed out that the community surveys reflect the wish for a pedestrian oriented community and Council should support the people of this community by denying this drive through. His opinion is that a successful business can be obtained without the benefit ofa drive through. He expressed his support ofthe BZBA's decision.
Mary Kay Roberts of Cherry Valley Rd. indicated a word in favor of George Fackler stating that as a neighbor he has been one ofthe best and she feels he should get anything he wants.
Jim Jump of 143 Thresher St. reiterated a word in favor ofthe design ofthis project. He called attention to the fact that the citizens of Granville do not want a drive through. He then questioned dcorinveditthiornoaulguhs.e in reference to future business at this location that may replace the existing appro Ted
Linda Payne of 100 Bantry St. emphasized her approval ofthe Fackler restaurant but is not in favor ofa drive through or beer and wine carry out.
Lois Rose of 103 Bantry St. supported the idea ofa drive through in the area. She pointed out the fact that among other things, Mr. Fackler has provided the required space for pedestrians to park
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and walk. She feels the traffic issue should not be compared to Wendys concluding that she is looking
forward to the drive through.
Steve Katz of221 E. Elm St. is in favor ofthe project in general. However,he does not support
a drive through based on wastes that are attributed to such uses. Specifically he indicated the waste of
gasoline by idling waiting cars,the fume effect on the environment,and safety in exiting the drive
through. He fails to recognize the need for a drive through in this area.
Constance Barsky also of 221 E. Elm St. would like to see both sides keep communication lines
open for discussion. She feels more emphasis should be placed on what it means to be in the Granville
community and what a project like this does to a pedestrian friendly atmosphere. She supports the
BZBA's decision but also feels there could be room for productive work sessions for further discussion
of opportunities.
George Fackler,Appellant,of 323 Parker Drive,Newark confirmed that he is the proud of eight owner acres ofSBD zoned land in Granville. He then thanked the citizens for their comments adding
his presence tonight is one of compromise. He also thanked Ms. Barsky for her comments suggesting
he also hopes to work together to meet on middle ground. He stated his wish to keep the negotiations open.
Frank Brauner of 117 Cambrey Circle then reported to Council that 600 cars went through a friends drive through in Newark on July 3.
Gary Stansbury,speaking as a property owner on Westgate Drive,stated his support for this project. He directed attention to the fact that had this area become a part of Newark,construction in said area would probably not have been near the quality ofthis project. He suggested that denying Mr. Fackler a drive through would be a detriment to the area and to this project.
Mayor Marshall responded to Mr. Wilkenfeld's reference to an anonymous distributor of material released to Council. Mayor Marshal affirmed his responsibility for the distribution of this material reiterating that it is his right to do so.
Councilmember McGowan's Lighting Committee report noted 26 new fixtures have replacrd. the incandescent fixtures with another 15 to be replaced in this years budget. He noted that four new lights would be placed in the area of New Burg Street near the new High School. He addressed reported comments by residents with regard to the brightness of said lights. He pointed out that some lights may be turned to correct the flow of light. He announced that the Committee is discussing possible placement of G"ranvillef"ixtures along Broadway. The idea is to let citizens purchase a light as a dedication or memorial noting the success ofthe park bench program.
1998. Councilmember Montgomery added that a plan had been drafted for the placement of lights in
Law Director Hurst expressed a concern for lighting in the crosswalk area between the midc'le
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and high school on New Burg Street. He asked that the committee target the walkway as he had
witnessed near disaster in that area.
Manager Hickman conveyed that the spacing of lights should cover the cross walk area.
However,he wiltlook at a possible cross walk sign.
Councilmember Montgomery reported on June 23 the Planning Commission approved the
following zoning permits: 120 S. Mulberiy, 210 E. Maple, 215 S. Prospect, and 218 E. Maple;
approved a sign permit for 129 Westgate,and 671-685 W. Broadway. The also discussed the proposed
rules and regulations. The committee again met on July 14 and approved a sign for 129 Westgate Dr,
and a zoning permit for 317 W. Broadway. The committee did not approve a sign for 44 S. Main, 746
Newark- Granville Rd.,or Shepardson Condominiums. The committee then directed the Village
Planner to seek the removal of three signs already erected at the condominiums. The committee then
held a zoning permit application hearing for 110 W. Broadway ( which has been continued)and held work session with a Certified Oil Company of466 S. Main St. regarding a zoning permit application.
Vice Mayor Freytag reported that the June 23rd Union Cemetery Board Committee meeting focused on the work of the preservationists from Massachusetts,noting their return trip will be in early
August. He added that the Committee is very satisfied with the restoration of the Old Colony cemetery wall.
Mayor Marshall reported the 1997 legal expenses ofthe Village at $72,756.00 and 112,239.00 since 1996.
Ordinance No. 14-97,A "n Ordinance To Vacate Certain Alleys Adjacent To Sunrise
Streetw,"as reintroduced,its title read,and moved for adoption by Councilmember Montgomery. Seconded by Councilmember Rader.
Referencing the list of signatures on file,Law Director Hurst pointed out the asterisk as noted by School Board Treasurer Norm Kennedy which forgoes any interest by the School Board. Mr. Hurst indicated that once the alley is vacated,the property reverts back to the preceding property owner.
Following a discussion of the property owners obligation to the vacated property, Councilmember Rader moved to table Ordinance No. 14-97 until further investigation of title Mseoatricohnwciathrrireedla. tion to the School Boards obligation. Councilmember Eisenberg seconded.
Appeal Hearing -George Fackler Conditional Use
Law Director Hurst informed Council in compliance with Chapter 1137.Ole and 1137.Oli'cf the Codified Ordinances. He then notified Council oftheir obligation to render a decision no later thati
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the next regularly scheduled meeting followed by formalization in writing within 45 days of that
decision. Once the finding of facts is adopted by Council it will then be served upon Appellant. He
then advised Council of their right under Chapter 1137.Oli. By way of clarification the law director
noted that this is the second time this matter has come before Council. He reminded Council that the
issue upon remand is the drive through issue. He then advised Council that it takes four votes to
overturn or modify the BZBA position.
Mayor Marshall announced Mrs. Smith as the court reporter for this appeal hearing.
Appellant attorney Phil Wince provided Council with a packet of documents relevant to this
proceeding as part of the record. He stated that standards for conditional use should not be arbitrary,
judicious,unreasonable,or unconstitutional,as he believes the BZBA decision to be all of those. He
noted there is no ordinance in effect which would prevent drive throughs. He feels the failure to
approve this drive through would be discriminatory and unconstitutional. He also feels the nuisance
traffic issues,without evidence,are not a primary purpose for denying a drive through. He noted
several BZBA comments suggesting personal bias while lacking credible and reliable evidence. He
reiterated that the Ohio legislature states the sale of beer and wine at drive throughs is legal. Mr
Wince noted that Mr. Fackler has the proper license for the sale ofbeer and wine. He noted the Bexley
case and the traffic issues raised by the down BZBA, stating that traffic alone cannot be a reason to turn this permit.
Mr. John Owney,President ofArchitectural Lines and Architectural Reviews,a witness for the appellant,was sworn in by the court reporter.Mr.Owney,an architect,noted that he had attended both BZBA hearings. He stated his attempt was to develop this project with the sensitivity to the standards of building and zoning codes ofGranville. He noted several attempts were made to develop a project that addressed the issues of all concerned, incorporating a more pedestrian environment within the development,creating a bike path,confining drive through areas,providing screens and landscaping to hide certain areas,and giving special attention to signage. He feels they have exceeded the standards for this project.
Councilmember MeGowan referenceds "tacking"of vehicles in the drive through. Mr Owney's response was that vehicles could be lined up to two per line in the bank drive through, and five to six cars inside with two to two and one half stacked outside the deli drive through area.
Mr. Owney was excused.
Mr.Wince summarized Mr. Owney's testimony as addressing the issues raised by the BZBA with regard to noise,congestion,and creating a pedestrian friendly environment while accommodeting future surrounding development.
Mr. Joseph A. Ridgeway Jr.,a partner with ?engineering firm was sworn in as an appellant witness by the court reporter. He stated he had been involved in two traffic studies to satisfy issues brought forth by the BZBA. The first study showed Fackler's development would have very little impact on traffic in this area. The second study was to address issues raised by the BZBA with regard to the noon peak hours. He indicated his study was of a high usage drive through,choosing a highly generated drive through to err high when measuring factors. He noted that the village engineer
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concurred with the findings of his firm. It was the opinion of the architects that even with the highest
generation used,there would not be a substantial impact on traffic in this area. He stated that the use,
as Mr. Fackler had proposed,is not a volume type fast food operation. He pointed out that the architect
and owner had made provisions to provide for a pedestrian friendly atmosphere.
Councilmember MeGowan expressed a concern with the waiting time of four cars in line at one
Mr. Wince noted that the original idea of this type of business was to encourage people to call
ahead or come inside to place and pick up orders while possibly purchasing other products during the wait.
Vice Mayor Freytag asked Mr. Ridgeway if he had ever studied this particular drive through.
He questioned Mr. Ridgeway in regards to the ITE manual in which the study was based. Vice Mayor Freytag then questioned the scientific certainty of such a study.
Mr. Ridgeway stated his traffic study included the project as a whole. He explained the
difficulty in scientific certainty,as in any traffic study. He indicated that in his opinion traffic surveying is not an exact science.
Councilmember Montgomery asked Mr. Ridgeway what the difference might have been had he
taken three drive throughs into consideration when studying the impact on this project.
Mr. Ridgeway stated he could have biased the report in favor of the drive developer by using three throughs instead of one which would result in lower averages. He chose instead to use the study which he familiarly knew as higher.
Vice Mayor Freytag asked Mr. Ridgeway if he had gone to Mr. Fackler to get his projections as htoetdhiedanmoto.unt oftraffic that would be generated by this development to which Mr. Ridgeway stated no
Mr. Ridgeway was excused.
Mr. Wince stated he had no more witnesses at this time.
Councilmember McGowan questioned the type of alcohol permit Mr. Fackler had,stating his recollection ofMr.Winces earlier comments led him to believe there were separate permits for carrycut wvsh.edthriever through and that Mr. Fackler had a permit to sell at a drive through location. He then asked or not Mr. Fackler would be able to do business without the drive through.
WincesMearr.lFiearckler responded that Councilmember McGowan was mistaken in his recollection of Air, comments.
Lon Herman ofthe BZBA was sworn in by the court reporter.
Councilmember Rader asked Mr. Herman what he meant by " undue"under conditional use
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criteria for approval in the finding of facts.
Mr. Herman stated there would be nuisances created such as congestion,fumes,hazards for
Councilmember Rader asked ifthis also applied to the bank.
Mr. Herman stated it did not because the bank was understandable in terms of the amount of
traffic in volume which was considerably less than that which would be generated by the drive through.
Councilmember Rader asked how Mr. Herman came to that conclusion.
Mr. Herman stated this was based on information provided by the applicant. Noting that the
amount oftraffic going through would be substantially different as opposed to a drive through.
Councilmember Montgomery referenced a paragraph in the finding of facts and asked for
specifics as to what particular food related business the BZBA had looked at.
Mr. Herman stated the Wendys operation and by information provided to the BZBA by village
officials. Mr. Herman then stated this drive though change. was a different product mix,as product mixes can
Law Director Hurst asked Council not to divert to things other than as report in the finding of facts as reported by the BZBA. He asked Council to focus on the report and any ambiguity that might exist from that report.
Following a discussion on the BZBA findings with regard to the traffic study,Councilmember Rader asked Mr. Herman why this was put in the statement. Mr. Herman stated he felt it was relevant and other portions ofthe finding offact explained this,adding that the evidence provided did not satisfy there would not be a problem with traffic. He suggested this particular traffic study didn't begin with accurate information concluding that village engineers decision was based on the methodology and not the accuracy ofthe study to begin with.
Mr. Herman was excused.
Law Director Hurst asked Council if there was any objection to the materials that had been submitted as previously stated by Mr.Wince prior to his exhibit. He then asked Mr.Wince to provide said exhibits to the court reporter for the record.
Following a five minute recess Mr. Wince gave his closing arguments. He noted the procedures Mr. Fackler had gone through and the changes that have been made to compromise this project with regard to lighting, landscaping,moving of cafes,and to make this development more pedestrian friendly. He reiterated the question ofthe drive through with regard to traffic impact noting that studies show no substantial impact to the area. He then added that this business development was designed to meet community and future development concerns from bike baths and shared drivewpy-s, to moving of the drive through from the caf6 area to eliminate fumes,while adding the increase :, 1
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property values, and employment increases. He noted the open lines of negotiation between Mr.
Fackler and Village committees and feels Mr. Fackler has compromised. He noted he had never tried
to mislead the BZBA about traffic studies and were always trying to err on the high side. He thanked
Council for their time and asked they reverse the BZBA decision.
Councilmember McGowan found no evidence to overrule the BZBA
Councilmember Eisenberg stated his disturbance that the BZBA has tried to set themselves up
as traffic experts. He has decided to cast his vote to grant the appeal with perhaps a few concessions
from Mr. Fackler.
Councilmember Rader noted he had problems with the finding of facts, although he is
concerned about the traffic impact in the area,he indicated he would vote to overrule the BZBA based
on the concession from Mr. Fackler that alcohol would not be sold in the drive through after 8:00pm.
Law Director Hurst noted that conditional use approvals are for specific uses, adding that
according to Chapter 1145 of the codified ordinances of the Village of Granville, uses cannot be changed without reapplication.
Vice Mayor Freytag stated his agreement with the BZBA's findings. He noted a concern about
BZBA did an excellentjob of evaluating the traffic study. He also stated the burden of proof is on the
the drive through selling alcohol and its impact on the amount of traffic it will generate. He felt the
applicant which he feels the applicant has not provided.
Councilmember Montgomery was in agreement with Councilmembers negotiating hours Eisenberg and Rader jn as related to the sell of alcohol at the drive through.
Mayor Marshall reminded Council that any site plan approval will come back to Council for final approval. He is in agreement with granting the drive through with modifications.
Following a brief discussion whereas the majority ofCouncil requested the drive through close at 8:0Op.m.,Mr. Fackler and Mr. Wince requested a briefdiscussion.
Alcohol Permit
Law Director Hurst notified Council of a notice of hearing from the Ohio Department of Commerce with regard to the application ofGeorge H. Fackler III .
Councilmember Freytag recommended Manager Hickman look at the minutes from tkie February 1993 Council meeting.
Council agreed that the Law Director should notify the Ohio Department of Commerce to cancel this hearing assuming that the minutes ofFebruary 1993 reflected no need to continue.
Phil Wince and George Fackler returned with the agreement and that although the BZBA had agreed to a closing time of 10:0Op.m. for the drive through,in order to comply with Council,the drive
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through would be open for alcohol sales from 7:00am to 8:00pm only.
Councilmember Eisenberg made a motion to grant the Fackler Appeal by overtuming the
BZBA decision,for the purpose of approval only and not for any franchise food operation,and that
Fackler agrees to negotiate in good faith with the Planning Commission for site plan approval,all the
necessary road improvements and traffic litigation matters. Fackler shall agree to provide reasonable
easements to the Village for the purpose of future improvements to Cherry Valley Road,that the same
general design shown in the architectural plans shall be maintained with changes approved by the
Planning Commission and that sidewalks will be retained on Newark- Granville and Cherry Valley
Roads,and the other changes as set forth in the transcript that Mr. Fackler has already indicated he is
willing to make. The restaurant hours shall be as desired and the drive through shall match the
restaurant hours with the exception that there shall be no sale of alcohol after 8:0Op.m. Seconded by Councilmember Rader.
Roll call vote: Eisenberg yes,McGowan no,Montgomery yes,Rader yes,Freytag no,Marshall
yes,Bellman absent.
Motion carried.
Law Director Hurst pointed out that the decision is not final until Council formally adopts the finding of facts.
Ordinance No. 109- 7,A "n Ordinance To Amend Section 1305.04 Of The Codified
Ordinances OfGranville,Ohiow",as introduced,its title read by Vice Mayor Freytag. Mayor Marshall set the public hearing on Ordinance No. 10-97 for August 6, 1997.
Ordinance No. 11-97,A "n Ordinance To Amend Section 1305.01 Of The Codified
Ordinances OfGranville,Ohiow",as introduced,its title read by Councilmember McGowan. Mayor Marshall set the public hearing on Ordinance No. 11-97 for August 6, 1997.
Ordinance No. 129- 7,A "n Ordinance To Amend Section 1175.02 Of The Codified Ordinances OfGranville,Ohiow",as introduced,its title read by Councilmember Rader. Mayor Marshall set the public hearing on Ordinance No. 12-97 for August 6,1997.
Ordinance No. 159- 7.A "n Ordinance To Amend Ordinance No. 429-6 Providing For Adjustments Of The Annual Budget For The Fiscal Year 1997 And Revising Sums For Operating Expensesw"a,s introduced,its title read by Councilmember Rader. Mayor Marshall the public hearing on Ordinance No. 159-7 for August 6, 1997. set
Resolution No. 972- 9,A "Resolution To Allow For The Donation Of Surplus Police Radio Equipment To The Central Ohio Technical College's And Licking County Joint Vocational School's Law Enforcement Officer Training Programsw"a, s introduced and read in full and moved for adoption by Councilmember Eisenberg. Seconded by Vice Mayor Freytag. Motion Carried. Resolution No. 97-29 was adopted.
First Presbyterian Church
Gary Stansbury,Planning Commission Chair,requested the approval from Council to hire
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an architect for the review ofthe First Presbyterian Church's renovation plans. He noted the
Planning Commission had several work sessions at which time the historic preservation was
addressed and additional questions surfaced. Keith Myers suggested the Planning Commission
seek advise from an outside architect.
Following a brief discussion,Council instructed Manager Hickman to pursue
Councilmember Eisenberg's suggestion and solicit the services of a few Granville architects to
donate their expertise to this project,possibly from a sentimental or historical value standpoint.
The alternative will be to pursue several different architects for estimates before making a selection.
Vice Mayor Freytag made a motion to adjouro, 4hq meeting at 11:4lp.m. Councilmember
Rader seconded. Motion carried.

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