Civil War Timeline.

 VILLAGE OF CHAGRIN FALLS
BOARD OF ZONING APPEALS
December 28, 2010

Members present: Fricke, Boehringer, Williams, Mignogna, Loomis
Also present: Himes, Byron, Subel, Evans

The meeting was called to order at 8:00 p.m. by Chairman Wade Fricke.

APPROVAL OF MINUTES

The minutes of the meeting held October 26, 2010 were approved.

SWEARING OF WITNESSES

All were sworn in.

ROSANNE M. PASSALACQUA, WEST END OF WEST WASHINGTON STREET - AN APPEAL TO THE SEPTEMBER 20, 2010 DECISION OF THE CHIEF ADMINISTRATOR THAT HER PROPOSAL DOES NOT CONFORM TO CODE SECTION 1125.03(c), PERMANENT PARCEL NO. 932-02-005.

ROSANNE M. PASSALACQUA, WEST EMD PF WEST WASHINGTON STREET - REQUEST FOR A VARIANCE TO SECTION 1125.03(c), AREA, YARD, AND HEIGHT REGULATIONS: MAIN BUILDINGS, PERMANENT PARCEL NO. 932-02-005.

Mr. Himes said the applicant proposed a new dwelling on a vacant lot. The lot they are proposing to build on is at the extreme west end of West Washington Street. It is a nonconforming lot that does not comply with the frontage required by the code, 1125.03(c), which requires 50 feet of frontage in that district. They have approximately 39 feet. As you may recall, they previously proposed a shared driveway. They have revised their plan so the shared driveway is no longer a zoning issue; they comply with the code in that regard. Our code does address nonconformities in chapter 1145. It discusses vacant lot in 114504(c) and says that vacant lots that do not conform to the width and area regulations may be developed. I am required to read the code literally. I went back and checked those. The frontage requirement is listed separately from the width and area regulations and therefore I determined that chapter 1145 did not grant them any nonconforming rights to build without having the proper frontage. That is why they are here, for that frontage shortfall. One note I would make about the driveway is that our code requires that there be a 6 foot separation between driveways on adjoining lots. It appears that their plan shows the 6 foot separation. The existing driveway on the neighboring lot would end up right on the property line. They would be required by 1125.04(b)(5) to get approval from the planning and Zoning Commission to build a drive on a common lot line with another drive. The lot is a hillside lot and is subject to hillside regulations. Their site plan shows that they would meet the required 73% undisturbed area and there are numerous other hillside requirements that they will have to comply with as well if they are to obtain a building permit.

Mr. Fricke asked, is there a potential planning and zoning issue on the abutting driveways? Mr. Himes said right, the code generally prefers that the driveways not share a common lot line so that there is not conflict between drivers coming in and out. In instances where they are put on a common lot line the Planning Commission is given the authority to review that to determine whether it meets safety requirements. Mr. Fricke said the hillside ordinances will come into play. Mr. Himes said correct. Mr. Fricke asked, will those issues be addressed with the building permit itself? Mr. Himes said those are addressed at the time they would submit a site plan for construction. It is reviewed by the Village’s engineer for conformity with all of the hillside requirements and there are grading requirements, vegetation requirements, erosion control requirements, and storm water requirements. They would have to comply with all of those. Mr. Fricke asked, so those issues are not before us? Mr. Himes said correct. Mr. Fricke asked if the first issue that we are deciding is whether you interpreted the code correctly and if you didn’t then we are saying there is no variance requirement at all. Mr. Himes said that is right. They have appealed my decision that they even need a variance for the frontage so I presume you would address that first. If you find that I am correct then they would need a variance for the frontage.

Dale Markowitz said I am here on behalf of the applicant Rosanne Passalacqua. He said I am assuming that you want to hear the argument to the evidence on both the appeal and the interpretation as well as the lot variance at the same time rather than present just the argument on the appeal as to interpretation and then assuming the vote were to go against us then we would have to put on the evidence on the variance. I would assume you would prefer to hear it all in one and then you can decide but if you’d said no, we want to hear the argument about the interpretation first I am okay with that. Mr. Fricke said I think that makes sense because if we agree with you then there is no need to go further, and you don’t need a variance. So, why don’t we start with that since it is the first item on the agenda and if we need to go further we will go further.

Mr. Markowitz said this is a drawing of the lot in question. It has been said we have eliminated the shared driveway issue but if you have the revised site plan you can see that we have the driveway coming across our frontage. We have a little under 40 feet, it is 39.69 feet, so we are short by 10.31 feet. The lot has a common line with the Wheeler residence on what I would call the south side and then the lot has a common property line with three parcels that are owned by Winston and Patricia Breeden that are along here. The existing house that the Breedens own is on the West Washington side. My client’s property comes at the fork of where Church Street and Washington Street come together. The piece that was originally, that is between my client’s property and the Breeden’s property, was Church Street, which is a 60 foot wide strip that’s now been vacated. That was done in 1972 with the approval of the city. At the time that was done my client moved that frontage along Church Street even though there was a long disused road and it had not been used for a long time because it had been built at a time when there was a bridge that went across the Chagrin River. That bridge has been gone for a long time so Church Street was vacated by the city. At the time that Church Street existed my client had a significant amount of frontage along Church. When it became vacated my client was left only with the 39.69 feet on the Church/West Washington intersection. That was something that the city knew. It was shown in the drawings and so obviously the city understood that they were creating a situation where there would be less than 50 feet of frontage left on this lot. In the codified ordinances for the city you had then and still have a regulation that says that if you vacate a street the property owners adjacent to it have the continued right of access on that street should they desire it. We don’t raise that as an issue here but that was something that would have been before the city for their understanding that if we had needed to get access across Church Street to go to our site by ordinance we would have the right to do so by virtue of the vacation. However, the lot still would have only had 39 feet of frontage. The lot actually was shown. This is a survey originally from 1837 that was done in Chagrin Falls and it was part of the Township of Orange back then but the street that is now called West Washington was known as Pearl Street at the time and Pearl Street went right up the river and in fact on the drawing here they show a bridge going across the river and so the parcel that we are talking about here was on this side of Pearl Street when it existed it was a larger parcel back then. These other three parcels also existed and they were a part of an allotment; they had lot numbers. There is a survey from 1859 that was done in Chagrin Falls and I have actually used the survey before. This seems to be a commonly used document and the Village has relied on it for various matters as well. In this survey from 1859, and it is more than one page but we took the page that is relevant to our lot, our lot is shown existing right here in the name of Noah Graves. It is a .41 acre lot so that lot has been in existence for well in excess of 150 years and as you can see it came to a point on what was called Church Street and called, it looks like Pearl, it is hard to read, and it remained that way until 1972 when this portion of what was then called Church was vacated and my client picked up 39 feet of frontage off of Church Street so that it has some connectivity to Church Street and to West Washington. So, this lot has existed since way before Chagrin Falls had zoning and it only got bigger as the street was vacated. This drawing here is the vacation plat that was recorded with Cuyahoga County and as you can see, the area that is in dark shadowing around the street is the area that was vacated by ordinance of the city. And so this part of the street became part of the land that was attributable to this lot and then the other half of Church Street went to east of these lots to the extent that they have frontage on them. So that is how this lot was created as you presently see it today and it has been that way since 1972. In 1972 your code required 50 feet of frontage, as it does today for this district the R1-50. But the lot had predated the existence of zoning so it is our view today as well as I am sure of the view of the city because the city engineer, the city planning commission approved it, and the city Council approved it that because it was already an existing nonconforming lot the fact that you are adding land to it and making it a bigger lot and giving it more frontage through the vacation you are getting the frontage on Church Street they considered it not to be what I would call an illegal act or a violation of zoning by allowing Church Street to be vacated. The code says that if you have a lot that doesn’t conform to all the requirements but it was a nonconforming lot meaning it conformed at one time and now no longer conforms that you can use that lot and in our case we would want to use it for a single-family residence unless you don’t meet the lot width and area. Now Ben I believe through custom had interpreted that to mean that if you didn’t meet the frontage even though you may have met the lot width and even though you may have met the area of the lot requirements that you couldn’t develop that lot and the reason why I assume he took that position is it wouldn’t be a lot width issue because we met it in our case but it says that either area or lot width. Now, in your code and I assume you all have your zoning code there, if you look at the regulation of the chapter dealing with R1-50 regulations they talk about 1125.03 they differentiate between lot width which is 50 feet and street frontage which is 50 feet and you provide in this section that these are the regulations for area, yard, and height regulations. If the code intended that you couldn’t build on a lot that didn’t meet the area or lot width requirements and if you then interpreted area to mean frontage I would assume it also would mean side yard, rear yard, front yard, lot coverage if you had that regulation, and total area which would mean that noone would be able to build on a nonconforming lot and that is not what your code intends because your code section dealing with nonconforming lots says that it is the intent to allow those nonconforming lots to be developed. In 1145.01 the code states that its intent is to permit nonconformities to continue. In that section if you look down under the regulations dealing with nonconforming lots that you want to build on it specifically says that if you don’t meet the area or width requirements then you have to follow certain regulations and in our case it says that if you don’t meet the area or lot width, not width but lot width, requirement then you’d have to somehow find a way to conform to the code. We meet the area requirement because our lot is six times the required minimum for the area. You only need 6,000 square feet and we have well over 35,000 square feet. We meet the lot width because of the building setback line, which is how you define lot width. We have 60 feet and you only need 50. The only nonconformity is the frontage and in that section it doesn’t say anything about frontage. If you intend it to have area be all encompassing you wouldn’t of had to put in the word lot width because area would have covered lot width. It would have covered frontage, it would have covered side yards, rear yards, and front yards. So to me when you say area I take that to mean the area between the property boundaries or the total square footage of the lot and I take lot width to be exactly how you define it in your code which is defined as being the width of the side yards measured at the building’s setback line, which is differentiated from the street front. Street frontage is defined to be the amount of feet that you have at your line that is facing the street or fronting on the street. There is a different intent in the code in my interpretation of it than how it was applied to us in that we did not have to meet the frontage requirement when we had a lot that predated zoning. We only would have had to meet the lot width and the area requirement, which to me makes sense because you’re trying to protect the lot area so that people aren’t building on undersized lots. Our lot is six times the minimum so that is not an issue. And, you wanted to make sure you had some space and separation for the home which is why you said specifically you must find a way to conform if you don’t meet the lot width. I take it that it is only because we didn’t meet the frontage we we’re still in compliance and we can build. Otherwise, we would be unable to use the property. Anybody who had a nonconforming yard regulation wouldn’t be able to build. If you look at the section that deals with yards and areas in 1125.03 for the R1-50 district it distinguished between the term area and yard and they say that your lot size has to be such and such size for the four districts in there and that is the area regulations. The yard regulations are the lot width, the frontage, the lot depth, front and side yards, and rear yards. So, the code says your intent is to try and allow nonconformities to continue. In Ohio the Supreme Court is has mandated that you have to construe zoning favorably to the property owner because it is a restriction on the use of their land. Therefore, if there is a restriction you have to put a narrow definition on it if you are attempting to restrict use visa versa if we are trying to use property for some purpose you have to broadly construe it in our favor. Here the application would be that you have to put a narrow construction on the term area and that the area was intended here to only cover the size of the lot. And again I say that because it is clear from my review of it that whoever drafted that language if they thought that area was going to encompass everything they wouldn’t have had the approved lot width. We would say for whatever reasons the customary interpretation has been put on it is not correct in its application to our lot. It would be if somebody didn’t meet the minimum area or they didn’t meet the lot width. We are saying that because we predate zoning because our lot was created long before zoning and our lot was actually enlarged when the vacation of the road occurred and the city allowed the vacation to occur. They had to have believed that they were not creating a new legal lot by eliminating the frontage that we previously had on Church Street and that in the code we still met the requirements to be able to build because we met the lot width and we met the area requirements.

Mr. Byron said the code sets forth rules and then provides exceptions to the rules. What we have here is a code, and within the nonconforming concept you have nonconforming lots and you have nonconforming uses. Then you could have nonconforming buildings. What we are looking at here is an ordinance that has been put together that talks about nonconforming use of land, that’s the title, and doesn’t allow the expansion of nonconformities as a general part of the intent. There is a nonconforming lot here. It is currently not occupied. The development of the property is an expansion of the use of the property and there is nothing in the code as described by Mr. Markowitz that would allow for an interpretation to allow that property to be used under the terms of the code. There is an insufficient size out, if you will, that applies to area and width requirements and I agree with Mr. Markowitz that that is not what we are talking about here. His general statements regarding what the law of Ohio require in interpretation are correct but that is for you to apply in the variance analysis rather than Ben who is required to apply the code as it is written. I am not sure I have articulated it as well as I could but basically there is nothing in the code that allows Ben to say yes, you can put a house on this property because it doesn’t comply with the lot requirements and specifically the one specific requirement it doesn’t comply with is sufficient frontage and that there is no exception for that variation under the code. That is what makes the variance exercise necessary.

Mr. Markowitz said there is nothing in 1145.04 that says that I can’t build a house on a nonconforming lot. That is not an expansion of a nonconforming use. The lot has always been held out for single-family residence so all we are saying to you is that it was always available to use for a residence and that is what we are doing, we are putting a single-family home on a lot that has been held out for that purpose. If the interpretation was that the lot has to stay as it is and you can never do anything on the lot then you wouldn’t have any need in your code to deal with the language that says that we are going to allow you to, in other words you wouldn’t have a reference that says single lot. You wouldn’t have to worry about that issue because you would say well you can’t put anything new on an unapproved lot. That is not what the code intended and it is not what it says. I appreciate what Mr. Byron is saying in the sense that Ben is supposed to read the code as the administrator and that you in the granting of variances can give a literal construction to it but I disagree that you have to do that only in a variance setting. I believe that you have the right to do that in your interpretation of the code because as the final interpreters in the city or village of the code you are supposed to construe these provisions when they restrict our land favorably to us, whether it is a variance or an interpretation any administrative action. What I didn’t hear Mr. Byron say is that, and maybe I misunderstood what he was saying, there isn’t anything in 1145.04 that Ben relied on that I believe justifies the denial because we have a single lot, the lot existed before zoning, and we comply with all requirements to the code other than frontage. So, we don’t see where in 1145.04 we would be prohibited from building on this lot.

Mr. Fricke said, if I may, it sounds to me like what we have going on here right now is a highly legal argument that is probably going over at least my head to some degree and everyone in this room perhaps other than the two of you. I am wondering whether it makes sense to proceed as you had suggested initially to talk about the need for the variance itself. Perhaps if you proceed and if this Board were to agree with you then we don’t have to worry about this legal argument. Mr. Markowitz said we don’t care how you get there if it is by interpretation of a variance we have no need to try to prove that Ben may have misinterpreted the code. We just want to be able to get our approval to be able to build a home. Mr. Fricke said I don’t know if anyone on the Board has any other thoughts. We seem to be in a very technical argument that I am not sure I feel comfortable opining one way or the other right now. Mr. Boehringer, Mrs. Loomis, Mrs. Mignogna, and Mr. Williams all said I agree.

Mr. Markowitz said I think I have probably exhausted my discussion about the interpretation. The rest of what I will say is really related to the character of the neighborhood and the impact and what we are going to be asking you to approve whether it is by interpretation or by variance. Mr. Fricke said, so to clarify, there were two issues on the agenda and what we have done, the first issue was a technical issue that we have just been discussing. The second issue I didn’t ask Ben to frame for us. My understanding from what we have been discussing is we are here solely to talk about a variance as to the frontage. Is that correct Ben? Mr. Himes said correct. Mr. Fricke said cutting through everything right now the issue is you have 39.6 feet and you need 50 and that is what this Board is here to decide tonight? Mr. Himes said that is right. Mr. Fricke said we are moving into this question right now, I just want to make that clear. Mr. Markowitz said we concur with what Ben said on that. We had originally come in with a shared driveway and that request we withdrew. We meet all of the requirements, other than the frontage, and as Ben pointed out the way the nature of the lots are, our driveway shares the same line so it will have to go to the planning commission for approval, although, you could move the driveway over to the other line if you had to but we don’t think that makes sense and we assume that the planning commission will see the logic to that. We will deal with the planning commission when we get there.

Mr. Fricke said we are not here to talk about the river buffer and we are not here to talk about hillside. The request before us is a variance for the frontage on a vacated street. Mr. Himes said correct, river buffer does affect the lot, hillside ordinances affect the lot, they will have to comply with those. Mr. Fricke said, but there is no variance request, there is no variance needed relative to either. Mr. Himes said the site plan they are showing complies with both hillside and, although there are hillside requirements that aren’t shown would be depicted at this stage. They will have to comply with all of those requirements. Mr. Markowitz said we show on the site plan the 120 foot river buffer setback and we are in front of that setback with our house as well as the erosion controls so that is not an issue for this lot. We also show the maximum disturbance allowed on hillside on this plan that we are well within because we could disturb .22 acres and we are only disturbing .15 but those are issues that will be presented to the city engineer for analysis and then the driveway will go to the planning commission. So, the only nonconformance is the street frontage on the 39.6 feet. As I indicated, our lot is significantly larger than this district. This is a 6,000 square foot district which is a pretty small district. In the Village you have other districts that require larger lot areas but in this area and then the character of this neighborhood the lots are typically smaller. In fact, our lot is bigger than most of the homes or the other lot that are on Church or on Washington, although not all of them. I looked when I was doing some mapping on this and I saw that our lot is larger than the next door neighbor, the Wheeler’s property, Mayor Brick’s house which is just a few houses down, the Harrison house which is in between, the Gyllstrom house, the Rosen house, Coleman’s house, the Lums, the Oakleys, the Catalanos, the Browns, and the Shusters who are all pretty much on Church Street. Their lots are all smaller. There are homes that have more than 50 feet of frontage but there are a number of other homes that are on Church or Washington or Maple or Water that have less than that and my client will show you a map that she did with some photographs so that you will see that it is not an unusual situation. In fact, one of the homes, it’s the Martino home which is that beautiful home on the river, it’s a five-acre lot I think. That lot is a few lots down south on Church Street. There is only 12 feet of actual frontage on that lot but it is a very large lot, a very attractive site. It got approved for a home about four or five years ago and I know the home from being on the other side of the river on the Flesher holding case when we were in front of you. But that lot used to have 62 feet of frontage, now there is a 50 foot frontage for the older home that fronts on Church and the remaining 12 feet is for the driveway for the Martino home. So, it is not out of character to have 39.69 foot frontage in the area. When trying to approve our entitlement to the variance I am sure you remember this, we have to prove the practical difficulty steps. The question will come, why did my client leave this lot as it is? Why are you trying to build on this lot? She did own, at one time, these other three lots that the Breedens now own. She sold that to them this year. At the time she did it she knew that the lot, that we are here tonight, was nonconforming and her interpretation of the code, as well as mine, was that the code would have allowed her to build so she didn’t make any attempt to try and conform the lot and I’m sure someone may have that question well why not and the answer was because we had a nonconforming lot of record. The Breeden’s home is on a parcel that 119 feet of frontage so mathematically we could have taken 11 feet out of their frontage and added it on to my client’s lot and then the Breedens still would have conformed. But, under the code we didn’t believe we had a necessity to do so and in doing so we would have ended up with the same situation that we originally had here, which is we would have ended up sharing a driveway with the Breedens on this part of Church Street because their driveway back to the, their garage is actually behind the, there is a, this is their house and then there is a cottage and they come through this drive here to go around so if we had kept some of this we would have ended up having a shared driveway, which is what I think the Village would have preferred not the have because your code has a stated intent not to have shared driveways. When the street was vacated back in 1972 whoever owned either on this side or this side would have had a right to use the 64 feet for access if they needed to. Our presentation to you now is we don’t need it. The Breedens, or whoever is there in the future, they shouldn’t need it either because they should be able to get into their house through the existing driveway that is on their property.

Mr. Markowitz said if you decide that there is a disagreement with us on the interpretation and you agree with Ben, then therefore our only option left is the variance. If we can’t get the variance approved then my client would not be able to use the property because there would be no way to use it without having the driveway access that is zoned for a residential use. There would be no available use to her and therefore we’d have a taking of the property, which we would say to you is not the intent of the code because not only in your code but the prior actions of the city of vacating the street. We don’t believe that the city would have wanted or intended that that lot not be able to be used. We’ve seen the communications from the city officials. The city engineer reviewed our proposal and had no objections. There are sanitary sewers available, there are water lines available, there is a hydrant right up here on Church Street, there is a storm water line that actually goes down the center line of the old Church Street and my client has given permission to the city to clean it up. So, we have the storm line that discharges out towards the river. The fire department has looked at the site and they had no objections. There is not a fire safety hazard issue from their point of view and because of the river buffer and because of the location of where my client’s home will be, it is not far off the dedicated portion of West Washington coming down and the driveway is not very deep so it would not be difficult for fire or police to really get access to the property. We believe that we met all the classic definition requirements of a variance under practical difficulty. One other item you should be aware of is that we attempted to obtain additional frontage. We went to the Breedens and asked if they would be willing to give additional frontage and they said they were not prepared to do so. They weren’t sure what their future plans were for the property and they declined to offer to sell us back some land. My client also contacted Bobbie Wheeler and Bobbie Wheeler had indicated to her that she was not interested at this time in selling her any additional frontage either. So, if we don’t get the variance we have no practical use of the land. There is no reasonable return on the land that my client would have. Therefore, we would have not only a practical difficulty test but we would meet the requirement for what would be an unnecessary hardship if that were the test because we would have no other use of the property.

Mr. Fricke asked, the proposal would be to continue the driveway off of West Washington Street? Mr. Markowitz said correct. Mr. Fricke asked, this would not require the reopening of Church Street? Mr. Markowitz said that is correct. Mr. Fricke asked, it would just be continued off of West Washington Street? Mr. Markowitz said yes. It is sometimes hard to see the plan because we have utilities on there and it is difficult to see the driveway. It is all going to come right off of West Washington Street. He showed pictures and explained where the driveway will be.

Rosanne Passalacqua said I have lived in the Village since ‘86 and I put together a list of properties that are close to the line that have less than 50 feet of frontage. It starts with 12 Church Street which I lived in previously in ‘92 or ‘93 and the Jerpbaks, who previously owned 10 Church Street where the Martinos are now. He separated that lot off of his parcel so that he could sell off the front house, 12 Church Street, and so there was at one time 63 feet of frontage and then he gave 50 feet of frontage to 12 Church Street. Then I moved down on to West Washington Street and then which of course I then sold it to the Breedens. Ten Church Street has 12 feet of frontage and 18 Church Street has 42 feet of frontage and then 96 Church Street also has 48 feet of frontage, 55 West Washington Street has 42 feet of frontage, 98 Center Street has 42 feet, 51 Maple has 40 feet of frontage, and then 26 Water Street only has 48 feet of frontage.

Ms. Passalacqua said I did not purchase this property with the knowledge of being insufficient frontage because I believed that the vacated street of Church Street was going to cover the entire frontage. My reading of section 1145, to me it sounded like that I met the area requirements, the width requirements, and so therefore I think I should be able to have a zoning permit. If I don’t, I don’t know whether the property will be useless for me. I mean I can come to visit it and hangout at the river and fish but I can’t live there. It is only going to be one home, which I don’t think is going to interfere with anyone else’s living spaces. I don’t need to share a driveway, which originally I thought I would, but we figured that out. There isn’t going to be a lot of traffic going down into my house because it is only one house down there and so there won’t be a need for any lights or stop lights or anything like that. I’ve lived there for 12 years. I had represented the seller of Martino’s property when he sold it and when the Village came down and he had said that he was going to tear the house down and he was going to rebuild and there didn’t seem to be a problem. Even though I am not rebuilding I just want to build, which I always thought was a buildable lot. If this property isn’t resolved, I don’t know what I am going to be able to do about this property.

Joe Gutoskey, surveyor /engineer, said I have been doing this for about 30 years now and I licensed with the state. This area was originally subdivided in 1837 and the parcel we are talking about was part of larger parcel but was not part of the original subdivision that was done and when the map of Chagrin Falls Village was prepared some time in December of 1858 or January of 1859 the parcel that we are talking about appeared on that map as a .4 or 2 acre parcel. In 1972 Church Street was vacated. On the site plan we tried to minimize the disturbance to the trees and the slope. The lot has 39.69 feet of frontage at the intersection of Church and West Washington. At the 30 foot setback line if you take a line at the setback line I calculated that there are 64.4 feet of width at that point and at the point where we are actually going to build the house there is about 96 feet of width. When this lot was originally created there was no zoning at that time but it had frontage on Church Street. We have a 120 foot river setback and we have the house pulled away from that so we have room to construct around it. After the house is constructed everything will be seeded and mulched. The existing fire hydrant is approximately in front of the existing Breeden house. There is a storm sewer that cuts through here, a water line on West Washington on the south side, and sanitary sewer up on Church Street, which we would pump up to. The lot is 35,958 square feet; six times the area required in the district.

Mr. Fricke asked, why when the street was vacated it increased the size of the lot? Mr. Gutoskey said because we acquired this additional land to the center line of the road. When a road is vacated it goes to the adjoining property owners. The property within the roadway goes to the adjoining property owners to the center line so it splits along the center line.

Mr. Fricke said it appears that the entire house is oriented so it is looking right into the hill and it appears as though the house will touch right up against that rather steep hill. Is that correct and that presents no problems from your technical point of view? Mr. Gutoskey said no, because I think the view is out this way because we are staying away from the slope. There is ample room in here to move it around but we needed to show something.

Mr. Boehringer asked, even though the road is vacated, the house, there is no structure in that area? Mr. Gutoskey said long ago there was. Currently there is no structure. Mr. Boehringer asked when you build your structure you will be 5 feet off the right-of-way? Mr. Gutoskey said no, off the property line.

Mr. Boehringer asked, these other lots, are they buildable lots? Mr. Himes said I don’t know. I would have to see a site plan to say if they were or not. I think the one closest to the river is probably totally encompassed in the river buffer.

Mr. Fricke asked, Steve, can you help understand what it means when a village vacates a street and what rights that creates thereafter? Mr. Byron said there is a state statue that provides that when a subdivision goes in or a street is platted the village acquires the property interest in that street and so when the Village originally platted that portion of Church Street the Village acquired the real estate and owned the real estate. When you vacate the property, Mr. Gutoskey is correct that abutting property owners on each side acquire the interest to the center line of that street so that property that is owned by Ms. Passalacqua expanded by the 30 feet half the distance of the vacated street. There still exists a statutory right-of-way. The same statute that provides for the vacation provides that anybody like the Village that has utilities in that street has a right to the easement to continue to access those utilities in the street. It also provides the right of access to other lots that are impacted by that so that the Breeden properties they are separately needed there I don’t know if they are developable or not given the topography and so forth but theoretically there could be a driveway put in to access those properties and that is all dictated by state law.

Mr. Williams said that explains why the Passalacqua property increased from .4 acres to .8 acres because of the vacation. Mr. Byron said I don’t know what the exact dimensions are but it would increase by whatever that area is. Mr. Fricke said had the Village not vacated the street we wouldn’t be here; there would not need for a variance. Mr. Byron said that is correct. It would have whatever the frontage was, two hundred and some feet of frontage, which is more than 50 that is required by the code.

Dave Mitchell said I am an attorney here on behalf of the Breedens and I can confirm that Ms. Passalacqua did approach the Breedens regarding the acquisition of additional frontage and the Breedens are not in a position to comply with that request at this time. Regarding the practical difficulty factors, at one time this parcel was the subject of a purchase agreement pursuant to which the Breedens purchased the other three lots that you see on the site plan there and this particular lot was removed from that purchase agreement at the option of Ms. Passalacqua apparently without having addressed the issue of whether it was buildable or not and the offer still remains on the table from the Breedens to purchase that lot. I suspect that a substantial gain from what Ms. Passalacqua paid for it so the notion that all would be lost and this property would have no value actually is not accurate. Secondly, we would note that there is a guard rail that runs along the rounded intersection there between Church Street and West Washington Street. Perhaps Dale can answer the question whether that will be removed as a result. Mr. Markowitz said no, that stays. Mr. Mitchell said I didn’t hear any discussion about how much of the lot is outside of the 120 foot river setback. I assume that is still a minimum lot. Acreage is available outside of that setback. Mr. Markowitz said I did not calculate it but I am sure it is well in excess because you only need 6,000 square feet so we probably have a lot more than that. Mr. Mitchell asked, where does the right-of-way for West Washington Street end and the existing driveway begin? Mr. Markowitz again explained where the driveway will be. Mr. Mitchell asked, so no part of the proposed driveway is at all encroaching upon the Breeden’s existing driveway? Mr. Markowitz said that is correct.

Mr. Mitchell said well, you did anticipate correctly some of the comments we had about why this problem has cropped up now when the applicant had ownership of all these properties at one time. It seems as though this could easily have been remedied by a partial lot splitting consolidation or reconfiguring of the existing lots there. I guess ignorance of the law at this point I’m not sure makes a justifiable excuse here.

Bobbie Wheeler, 4 Church Street, asked that Mr. Markowitz point out what portion of our property that Ms. Passalacqua wants to purchase from us. Mr. Markowitz did so. Mrs. Wheeler asked, how many of you on the Board have actually have gone on site to see this property? And, did you happen to honor the letter that I wrote giving you an invitation to come on my property to do it because you get an entirely different perspective when you look at this property from my property, which is directly above her? I don’t know if it is proper to ask right now for you to ask Ms. Passalacqua what’s the height of the house that she plans? Has the construction gone to that point? Mr. Fricke said it sounds like it hasn’t. It sounds like if it exceeds whatever the code requires she will be back in front of us for a height variance. Mr. Williams said it would also involve the Architectural Review Board as well.

Mrs. Wheeler said, as you already know, her property boarders ours to the north completely and with the crest of that hillside this is through no action of the Wheelers, we’ve been drawn into this situation unfortunately, because our view is that if this variance is granted this could do a lot of jeopardy and depreciation to our property because of the way that hillside comes up. She has got to cut down trees in order to build this house and I have a copy of the map, which is shown up there, and the excavation starts approximately two to three feet at the base of that hillside. How does anyone plan to get equipment in there to dig a basement without jeopardizing that hillside? That hillside is extremely fragile. It’s been that way forever. There has been nothing built on that property for 120 years. The previous building on that property was a foundry which was built in approximately 1840 and after being flooded out three times and burned twice in 1880 they moved it to Ravenna, Ohio and there has been no property even considered to be built on there in the last 120 years. I have lived there for over 40 years so I am pretty well versed about what the other neighbors who live there had planned. Our concern is how are you going to show us that these trees are not going to take down our hillside and the bores on our patio. She owns part of the hillside and so do we. But at the base of the hillside I’ve already told Ms. Passalacqua that I think it is very improbable to put that house in there at the corner and be up against the side of a hill. Those of you who have been there and seen it see that the location isn’t even probable. There’s not even any air circulation and I know that’s not your decision at the moment but under no circumstances do we, we are shocked that somebody would even consider putting a house there and I think there is only a very small portion that she can put there as far as the house being expanded or not expanded. Ben can answer that. Can she build a larger house on what is buildable on the property that is shown on that map? Mr. Himes said I don’t know. They’ve got a building envelope that they have to meet front, rear, side yard setbacks and river buffer and then they’re also restricted by the disturbed area. They are mainly constrained right now by the side lot lines, the hillside, and the front yard setback and river buffer. So, I think they could probably be marginally larger but not much larger than what they are proposing. Mrs. Wheeler asked, so, their alternative would be to go up rather than out. Mr. Himes said you could go up to the limit of the code, which would be two and a half stories or 35 feet. Mrs. Wheeler asked, what is the height of that hillside Mr. Gutoskey, including the basement foundation? Mr. Gutoskey said the basement is only about 4 ½ feet in the ground. That is pretty much typical of what we do. He said the height of the hillside is about 20 feet. Mrs. Wheeler asked, what is the height regulation Ben? Mr. Himes said 35 feet. Mrs. Wheeler said the house, theoretically, could come up about 15 feet higher than our patio, right, the roof of the house? Mr. Himes said I don’t know what the elevation of your patio is but from the top of that hill, the hill is about 20 feet so if they built 35 feet up, basically the gable of the house would be above the top of that hill. Mrs. Wheeler asked, and what recourse would we have with taking those trees down? There is no possible way the trees can remain there or they would fall over on her house. Not to mention, the hillside might slide down on her house. Mr. Himes said it is a hillside lot so they have to comply with all the regulations of the hillside. Mrs. Wheeler asked, is there something that assures that that is not going to cause damage to our hillside there or to our patio? Mr. Himes asked, assurance that the construction won’t? Mrs. Wheeler asked, how can they excavate down there without it going into the hillside? How can they get equipment in there? Mr. Himes said that might be a better question for the applicant but I presume they would access the property through the existing driveway that is fairly flat and level down there and then I think getting equipment there would not be difficult. They would have to protect this hillside during construction with some type of shoring.

Mr. Gutoskey said the house is up out of the flood zone, which the Village has verified.

Mr. Williams said there are a lot of moving pieces to the plan and we’ve been ask to review one of those, which is this variance request specific to the lot line or specific to the frontage that the property’s got. A lot of the other issues that have been raised can be addressed by the Planning and Zoning Commission regarding the proposed location of the driveway on a shared lot line, the hillside ordinances that would be involved because obviously there are stabilization issues. Their tree removal program would have to reviewed and the Village’s engineer. The Architectural Review Board would be involved from any proposed height of whatever the designed dwelling would be. There are a lot of other pieces that are going to be dealt with that are not really dealt with by the Board of Zoning Appeals and I just want to make sure everybody understands that. Our scope of this particular meeting is extremely limited and that is again to the amount of frontage that the lot has and how the code applies to the proposed variance where that frontage is concerned. There are no other variances in front of us that would deal with some of the other questions that may have been raised in earlier meetings that we’ve had. They’ve modified their plan to simplify their request as much as possible down to this one single issue.

Mr. Fricke asked, Ben, did you receive any other letters or comments made? The neighbors were all given notice of the meeting? Mr. Himes said yes, notification was sent out. I received a letter from Mrs. Wheeler, I think you all have that, it was back in October and then I have one other letter from Greg Gyllstrom that was in response to the first notice and he simply said he had a conflict and was not able to attend and just said that he was opposed to the variance.

Marta Harrison, 18 Church Street, asked, when was the code for the setback established? Mr. Himes said in the mid ‘60s. Ms. Harrison said most of the homes that we are talking about that we all represent were built way before that code was ever put into effect. So, the front footage issue should not really apply. Mr. Fricke asked, Steve, can you be grand-fathered in? Mr. Byron said that is the purpose behind permitting nonconforming situations to continue and the code does provide for that. What I didn’t articulate well before is this proposal falls in a gap that doesn’t expressly allow the development of this property without the sufficient frontage but there are other issues that you consider in the variance process that have been raised by the parties in this matter that govern your determination of the variance question.

Amy Wheeler said I am Bobbie & Lewis Wheeler’s daughter at 4 Church Street, although I don’t live with them. My concern on this variance for the frontage is that I grew up here. I was born at Center and Water and moved to Church Street when I was in third grade. Is giving a variance to this frontage issue going to set precedence for the rest of the Village? I would like to see this Village somewhat maintained and if we let something like this happen then we have to let somebody else do it because they come back to this issue and say well, you let her do it. I think really we have to draw the line sometimes. We have to start endearing the codes that the Village has.

Dick Shanklin, 98 Center Street, said I think you really have to consider what the other people have said here, including Mrs. Wheeler. The hillside can not only be a problem for the Wheeler property but it also could impact the proposed home that Ms. Passalacqua would like to build down there. That hillside could really be a problem and I think you have to give that some real consideration on that issue.

Ms. Wheeler said I really feel because that hillside is such an issue to my parents’ house, will we have to hire a structural engineer prior to any of the excavating down there to make sure damage isn’t done to their house in hindsight. I hate to see historical homes go to pieces because and certainly Rosanne, I am a real estate agent in town, Rosanne is a real estate agent in town, we are familiar with all these things. My mother was a real estate agent.

Mr. Williams said Amy, you certainly have the ability to talk to the Village engineer who will be representing the Village’s interest in this to insure that anything that was done was done in such a way to minimize any impact on the surrounding area, if not eliminate any impact on the surrounding area so that would probably be a starting point.

Mrs. Eberlein, 104 Center Street, commented that it would be nice for this Board to take a stand rather than pass it on to another committee.

Mr. Fricke said one of the challenges is the issue before us, which is does this warrant a variance? I go out there and I walked the property and I see the hill and I see the trees and I say gosh, that would worry me but I am not an engineer. The Village has engineers who look at that and from what Ben is telling me this does, the Village’s hillside ordinance, apply to this piece of property. I can’t opine on whether moving this tree is going to cause a problem but the Village has people who do that. It is the same thing that happened to that Orange Street development. Gosh, that’s a steep hill, and all kinds of things going on. The question before us was we have to balance the applicant’s property rights on her property versus the Village’s rights and your rights as well. We try and juggle all this and if we say no then the question is well, does that mean there is no use to her property? The reason we don’t opine on hillside and trees is you don’t want us to because none of us know what the heck we are talking about when it comes to hillsides and trees.

Mr. Fricke said the challenges we have as a tiny little Village that is chalked full of charm and we have houses and all kinds of yard of all sizes, shapes, colors, you name it. I live in a newer house and I had to get two variances given to my house and if this whole room walked to my house you’d say there is absolutely no need you’d ever have to have a variance, and I had to. I’m in a new development but it is because of the odd shape of our little town and we are trying to have a one-size fits all code. So, that is the challenge that we all have to deal with. We could have no rules because every lot is totally different but we have to have something. Our job is to look at variances and we have said no and we have said yes and we just have to look before us and the Supreme Court of Ohio has said here’s the test you have to look at and then the factors of Ms. Passalacqua went through. That’s what we are trying to juggle.

Louise Brick , 12 Church Street, said we had about an hour and a half from Mr. Markowitz who certainly is esteemed and we’ve heard from others who are passionate about what they are doing. It seems to boil down to the fact that they need a variance and some they are not up to code in whatever the frontage is or something and it is within your power to offer that. However, Ms. Passalacqua did own all that property and if she knew she was going to build a house there you would have though she had been a little more prudent about going through all the rest. If you are going to give her the variance that’s within your purview, that’s why you are a committee but the other thing I heard her say is that then well I’ll just be able to come down and visit my river, it’s going to be a hardship. It’s not exactly a hardship. I heard somebody speak to issue that that property somebody would buy that property from her so she might not be able to have her house on it but she certainly isn’t going to have a total hardship of having a lot down there that’s not a usable lot. I am not sure if I am kind of getting it but that’s the information I took in after an hour and a half.

Mr. Markowitz said, Mr. Mitchell said that his clients would like to buy the lot. That is not an enforceable obligation. My client has no contractual right to compel it and if this Board were to turn my client down she has no right to go to court to go to the Breedens say okay then you must buy it and they have no specific price because there is no agreement on that. The fact that he volunteered that they would buy it has no legal or practical consequence here. You don’t measure takings by whether or not a neighbor might be willing to buy the property if you can’t use it for anything else because if that is the test then everybody will wait till the variance is turned down and then they will say okay we will offer five cents on the dollar. The test is not what the neighbor is willing to pay for it, it is what the city will allow it to be used for. And, if you say no we are not going give you a variance then there is no use that she can make it a lot and that wouldn’t prohibit the Breedens if they bought it or let’s say Bobbie Wheeler said I’ll buy it. Ten years from now she moves and somebody else buys it they could come back and say okay now I want a variance on that lot because I can’t use it for anything else even though my predecessor bought it and I bought it from them. So, the test is what your code says not what some neighbor’s interest may be.

Mr. Mitchell said I would comment on behalf of the Breedens that they would be happy to go on record and say they will purchase this lot for $200,000 whether or not the variance is granted.

Mr. Boehringer said I have walked the property down there and I see this proposal and cutting those trees down against the Wheeler property even though there is a stone wall there those trees have been there for years. You take those trees out I don’t think that stone wall is going to stay there. Mr. Byron said you need to ask an engineer that question. You need to ask a soils guy about what the stability of that is. There are ways to engineer things; it is a matter of cost. It’s not really a legal question you are asking me except that it is the law of gravity.

Mr. Fricke said I would like to ask you a legal question or for that point I would to, I think we need to talk for a moment. Mr. Byron said you need to take a motion to adjourn into executive session to discuss litigation with legal counsel.

At 9:38 p.m. a motion was placed on the floor by Mr. Boehringer and it was seconded by Mr. Williams to adjourn into executive session for the purpose of discussing litigation with legal counsel. Carried. Ayes: Boehringer, Loomis, Fricke, Mignogna, Williams. Nays: None.

At10:02 p.m. the meeting reconvened.

Moved by Mr. Williams, seconded by Mr. Boehringer to approve the variance request submitted by Rosanne Passalacqua on the parcel which she owns at the end of West Washington Street, at the corner of Church Street. I would like to include in my motion the fact that the BZA is obligated to hear all variance requests by private property owners that are unique to their particular situation. In Ms. Passalacqua’s situation Church Street was vacated in 1972 creating a situation in which she had deficient lot frontage down to the 39.6 feet that she has right now from previous lot frontage that was in excess of 200 feet. This is a situation that was created after the code. The primary code was written in 1966 and was certainly created after the lots were platted in the 1800's. I’d also like to add that Ms. Passalacqua was under no requirement to change the configuration of the lots when she owned all four lots that were down at that end of the Village. I’d also like to add that this is a situation that will go through many other commissions here in the Village, specifically the Planning and Zoning Commission, the Architectural Review Board, that will have to be reviewed by the Village’s engineer for hillside stability issues among other issues facing any new construction as well as meeting all the other requirements within the ordinances of the Village. I’d also like to add that the finding of practical difficulty has been met in this situation again because of the principally unique situation facing the vacation of Church Street. Also there are several tests. Is the variance itself considered substantial? It is a 39 foot lot frontage and the requirement in the code is 50 feet so the variance request specific to that issue is not substantial. Could this situation have been feasibly obviated through some other method other than a variance request? No, this is a landlocked situation offers to expand the frontage of the particular lot or made and those proposals were denied by the neighboring properties. Also, more specific, will this adversely affect the delivery of governmental services, police, and fire? No, I do not believe it will. The question that came up is will this property yield a reasonable return is uncertain because of the proposal that was made here in these chambers for an offer on the property itself. So, that issue does not necessarily need to be addressed in this particular motion.

Boehringer: Because of the oath I took for this office and this is not one of my most favorite decisions, I vote yes.

Loomis: I vote yes.

Fricke: I just have to say if I was voting just purely on emotion I would be voting no but we are here to uphold the ordinances of the Village. My concern is we are looking simply at a variance on frontage, that’s it. The emotion of the hillside, the trees are all real concerns and I put my faith and trust as I have to in the other Village officials who address those issues. I can’t get around the fact that the Village created the hardship by vacating the road, Church Street, so I have to vote yes on that ground.

Mignogna: Yes.

Williams: Aye, and I would also like to add to my favorable vote that I too am a life long resident of this Village. I have undertaken my responsibilities both as a Board of Zoning Appeals member very seriously over the last nine years, I also take my rolls and responsibilities as a Councilman very seriously in working for the Village. The Board of Zoning Appeals faces a lot of variance requests that are unique to particular property owners challenges in what they want to do. What most people are not privy to is that variances do get denied and, in fact, many, many more variances do not even come before this Board because the residents who are proposing those applications are told that their likelihood of passing are very, very low. We are fairly steeped in what our Codified Ordinances allow and disallow and we try to apply those to the best of our ability to each unique situation that is brought before us, weigh those concerns with the residences of the Village, in particular the neighbors to the particular applicant who is seeking the variance.

Mr. Fricke said this will go on to Council. Mr. Himes said January 10, 2011.

The meeting adjourned at 10:10 p.m.

_____________________________
Wade Fricke, Chairman
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