BZA January 24, 2012 Green Vision

The Newbury Township Board of Zoning Appeals public hearing was called to order by Mr. Ray Fidel, Chairman, at 7:30 p.m. on January 24, 2012 with Board members, Mary Lee Brezina, Tezeon Wong, Bill Skomrock Sr. and Chris Yeacker present. Mr. Fidel outlined the procedures for the BZA hearing: the applicant would present his case, expert testimony would be heard and afterwards all others who wished to speak would be heard.

All in attendance who wished to speak for this hearing were duly sworn and asked when testifying to state their name and confirm being sworn in. Ray Fidel read the applicants request:

Green Vision Materials Inc. requests 1: - a use variance to permit a composting operation of green landscaping waste on leased property (formerly occupied by a trucking company) at 11250 Kinsman Rd. in the B-1 and R-1 zoning districts where composting/material storage, trucks and equipment is not permitted (Art. IV, Sec. 401 A,V,Y) and 2: - area variances with parcel consolidation to correct setbacks; parking lots cross lot lines & are within 25 ft. of side lot lines (Art. VI, Sec. 607B), driveways are within 10 ft. & crossing lot lines of parcels 23-242200, 199400, 127150, 200000 & 199500 (Art. XI, Sec. 11.07C), and non-permitted use within 75 ft of active park lot line (Art. VI, Sec. 507G) and >50% lot coverage on parcel 23-237150.

Beau Gibney, President of Green Vision Materials Inc., (GVM) said he had operated TRC Landscape Service since 1995, starting with 4 employees with the business now grown to 30 employees. The increase in yard waste recycling (consisting of green waste, wood-based materials turned into mulch) at 11220 Kinsman Rd. requires expansion to12250 Kinsman Rd. Mr. Hess clarified that mulch processing was not composting and GVM has an EPA permit to operate at 12250 Kinsman Rd. He stressed that there have been no complaints, no violations on GVM operations. All incoming material – wood chips, logs, leaves, grass clippings - are processed then sold/trucked off-site. NO treated wood, manure, RR ties or trash is accepted. Any water run-off is gravity managed via swales, collection/settling areas. The property is viable for this mulching operation. The property has a prior-use history as a trucking terminal. Lot consolidation would reconfigure the existing driveways. Current zoning limits future development at 12250 – existing EPA test wells, setback violations and buildings. All work done by GVM would be above ground. If the economy improves, the site could sustain other development. For GVM, this is a good site geographically, close to customer base for a growing business. Mr. Gibney wants to stay in Newbury, not infringe on any neighbors as the site has ample space and is over 2000 feet from houses.

Mr. Gibney said his goals are to clean up the property, work with zoning, correct any violations, remove some structures, provide screening and ultimately adding value to Newbury Township. The township and residents would not be charged any fees to dispose of yard wastes. He believes there would be fewer township fire calls if residents yard wastes could be recycled. He intends to add a color dye that is not hazardous – below the level of table salt. The color would be black, there is not enough call for other colors. He would not add dollars to the process without a good return.
He has provided copies of the EPA license, material specs for the dye, wind studies to manage pile-turning odor blown east to Burton-Scott property. He re-emphasized; mulching is not composting – mulch is not broken down to its finest small particles. A biofilter manages the run-off, the soils study indicates any leachade would not permeate the sub-soil.

Mr. Fidel asked whether Mr. Gibney would buy the entire property – he said yes. Would he sell off the existing houses – to be determined later. Mr. Hess then illustrated on the screen, the locations of the Manfredi Terminal building, the mulch piles, test wells, ponds, bioswale that drains to a central collection area with a clay layer 6 feet below the surface and a small creek draining northeast. The dark runoff from putting out a small localized fire drained to the east swale, then was pumped back onto the pile, not into the creek. He also showed the location of TRC Landscape Co., the school ball diamonds and the park. The mulch processing area would straddle the 500 ft. setback line separating B-1 commercial and R-1 residential zoning, with total lot coverage less than half of the property south of the ponds.

Mr. Fidel asked whether all water would flow to the pond. Mr. Gibney said he plans to raise the driveways so there would be no overflow, no harmfull effects, no toxins but not drinkable water. Eventually the water dissipates and no leachade would flow to the rear ponds.

Mr. Wong asked how full does the collection pond get. Mr. Gibney said the level could raise several feet, the area can accept lots of runoff and has never had a spill-over. Mr. Wong asked if he had any back-up power for the pump. Mr. Gibney said the goal was to re-grade a new swale for a gravity drain system. If that isn’t possible, he would supply a generator back-up. The applicant said he had completed his presentation.

Mr. Fidel then called on Mr. George Smerigan, expert witness for the township to respond. Mr. Smerigan distributed his report – Exhibit A - to the board members. He introduced himself as Vice-President of Oxbow Engineering Co., gave a brief background resume testifying as an expert witness in local and federal courts and outlined the critical issues relevant to the Use Variance. He said he believed GVM was a fine operation with a reasonable request but that was not the issue. The applicant must show evidence that an unnecessary hardship exists to meet the standards of a Use Variance. The applicant claims the process is not composting but he has a Class IV EPA composting permit. This operation meets the composting definition of the State of Ohio EPA. He reiterated that NZ code 401B prohibits composting in any district and that anything not listed is prohibited.

He then summarized his analysis and professional opinion on meeting the 7 standards for a Use Variance:
1) The site is environmentally impacted, presents a unique condition limiting its potential for some commercial uses, reducing its market potential but not rendering it unusable for other permitted uses,
2) The owner and previous user created the current environmental conditions,
3) Production of dust and odors when the piles are turned, the potential for ground water contamination and spontaneous combustion adversely impact adjacent land owners.
4) Potential for dust, odors, water contamination, spontaneous combustion all represent potential impacts on public health, safety and welfare.
5) Newbury zoning has specific prohibitions on composting – this use is not consistent with the spirit and intent of the zoning regulations.
6) The applicant presented no evidence to substantiate that a Use Variance is the minimum action to provide relief.
7) The applicant presented no evidence that this site is unusable for economically viable permitted uses. Tenant leases (houses) are now other uses on the site.

Mr. Gibney said “I intend to bring tenants onto the property” but such tenants are not yet specified.
Mr. Smerigan concluded his review by stating: the applicant does not show a unique hardship nor present evidence that the property cannot be used for permitted uses in the B-1 district. In his opinion, the BZA cannot grant the Use Variance, therefore the Area Variance is moot although lot consolidation could negate the setback issues leaving driveways and multiple houses on one lot.

Mr. Fidel asked how long the test wells would be monitored. Mr. Gibney replied he didn’t know as it was done under the previous owner; it could be 10 to 15 years or more, determined by the EPA. Mr. Smerigan agreed that the wells reduce the utility of the parcel. He quoted the Newbury code – maintaining high standards is the intent of the law. In order for the BZA to grant relief, the applicant must show a unique hardship – the BZA can’t amend the code by variance.

Mr. Fidel told Ms. Wieland the BZA can’t grant a variance to a tenant although variance were granted to the former owner. If a tenant business leaves, the variance would remain with the property. Until GVM purchases the property, the BZA can’t grant a Use Variance to a tenant. The property owner was in attendance. Mr. Gibney said he should have been told the tenant restriction beforehand. Ms. Endres said the tenant has standing to apply for a variance with the consent of the owner. Mr. Fidel stated he favored a Conditional Use permit for 5 years – not for a permitted use. Discussion continued regarding options now available to the applicant.

Mr. Fidel then called on Bob Weisdack, Geauga County Health Commissioner to present his information. Mr. Weisdack showed the map he had created to clear up any issues or questions about the prior status of the property. He indicated the 2 ponds in the rear, the location of the test wells and concerns of the Kiwanis Lake Community (KLC). He said x-rays and sonar probes showed no evidence of “rumored” buried tankers, 114 wells in KLC were tested for water quality. He said he was here to reference public health questions, not zoning matters, with his record of inspections for best educated answers. He distributed an Ohio EPA sample of Daily Log of operations plus requirements to meet Class IV Composting – Exhibit B. EPA sets the rules but Geauga Health Dept. does the (unfunded) inspections. Page 2 identifies the acceptable waste stream materials.

Mr. Weisdack pointed to the original site west of the Manfredi property. Hi srecords show that in one year’s inspections there were no violations. KLC called the Geauga Health Dept. (GHD) about the high rate of cancer in their community. The EPA & Ohio Health Dept. tested the water and found no negative impact on the water quality. EPA mandated the test wells and GHD follows up on the inspections. He asked Mr. Gibney whether the houses will be removed – answer no. Concerns about the 3 old septic systems and wells – a potential hole for contaminating the aquifer. To date there have been no violations reported on the housing site.

Mr. Weidack then considered the new (Manfredi) site: the only violation concerned treated/painted material. Upon investigation, no physical evidence was found nor any in the log reports. A reported fire resulted in black material washing into the stream. The EPA mandated appropriate action be taken: a diversion trench was dug and the liquid pumped back onto the property. Mr. Gibney explained the Newbury Fire Dept was called but took no action on the intense smoldering pile whereupon he laid a hose that caused the overflow. The diversion trench contains the leachade and no residual liquid flows off the property. Mr. Weisdack’s suggestion: place a berm behind the trench where the piles drain to the bio-drain area. This should contain the overflow even after a massive downpour. He said the soil permeability rate allows the outfall to the natural recharge area – the liquid moves through the soil and is filtered and purified. I takes about 120 minutes for 1 inch of water dissipation. The clay sub-layer protects the ground water; quite different than if it were sand/gravel with a much higher permeability rate.

Mr. Weisdack said, in his professional opinion, there should be no overflow and no significant public health issues. He asked Mr. Gibney if there is a gated entry – they now have a cable barrier. Discussion continued regarding the vintage area houses ( currently rented), their septic systems, wells, point-of-sale inspections with ownership changes, etc. He had reviewed the MSDS spec sheets and agreed the black coloring agent is non toxic. He cautioned that the piles/chemicals should not be closer than 50 feet diameter from any water well. He said the EPA had issued a Permit To Install (PTI) but that was never done. His major concern was to make sure the leachade is channeled to the bio-swale.

Mr. Skomrock, Sr. asked if the lakes would be affected by the runoff. Mr. Weisdack replied no, any runoff is funneled down the swale to the bio recharge area where it dissipates in 4 to 5 months per monitored/acceptable results. Mr. Yeacker asked about a suspected buried tanker with chemicals inside. Mr. Weisdack said ground sonar found a 15 ft. long item – turned out to be a concrete drainpipe installed per the EPA. He found the site to be surprisingly clean given it’s history. Mr. Gibney asked if there was any reasonable risk to public health – Mr. Weidack replied no. Ms. Brezina asked Mr. Weisdack about nuisances: odors – musty but not overpowering smells that do not carry long distances – in his judgement.

Mr. Fidel then asked for questions from the audience. Mr. Quigley said he was a Newbury trustee but was here as a resident. He asked whether the sanitarians checked the runoff, either the EPA or GHD. Dave Diesel reported the black organic material was not a big problem, the pile runoff swale diverts liquid to the bio-recharge area but no testing for CCA was done. Mr. Quigley questioned whether there indeed was no public health risk given the potential for dust, objectionable odors and spontaneous combustion fires.

Craig Matthews said he was the president of the KLC Homeowners Assoc. whose main concern was for water quality. He opinioned that organic matter was better than what was dumped there previously. Mr. Matthews said that KLC had no problems with the expansion plans of GVM. Discussion continued regarding disposal of septic tank pumping; via 2 treatment plants or lime-stabilized for land application. Mr. Wiesdack concluded his presentation and said he was always available to answer questions at 440-279-1903 or his pager at 216-982-4789.

Douglas Ralston, Ralston Instruments of Cross Creek Pkwy, asked if the land was suitable for growing – yes, the rear was all woods and environmentally safe to walk. He said there were other viable uses for the land as it was next to Newbury Schools and Oberland Park. Griffin Ralston asked about the soils permeability and questioned whether engineering expertise is required for evaluation. Mr. Quigley said there was a recorded covenant (agreement) with the EPA that outlined restrictions. Mr. Weisdack said he has access to the EPA data and the public health information but has no knowledge of any covenant. He said he deals with soils on a daily basis. Mr. Quigley said “ the EPA may be interested in visiting the site “…regarding the covenant. He also asked about signs, color and chemical changes that are not permitted. Mr. Wong reminded him this was not part of Mr. Weisdack’s report. Mr. Fidel said this was the last call to question Mr. Weisdack.

Chip Hess asked to clear up the confusion over composting vs. mulching. Mulching as done by GVM is NOT COMPOSTING. Yes, GVM has an EPA permit for composting because the EPA does not issue a separate permit for mulching; the Class IV permit is the least impact for green waste disposal so mulching is lumped in with composting.
To review the Duncan Factors presented by GVM:
a) This lot is unique with a troubled history, with residual monitored wells but is favorable for GVM use,
b) The unique conditions were there prior to GVM utilization of the site,
c) Bob Weisdack and the Kiwanis Lake Assoc agree there are no risks to the neighbors,
d) No adverse side effects,
e) GVM needs a Use Variance to expand operations or they must locate elsewhere,
f) GVM beliefs a Use Variance is the minimum action to afford relief,
g) Given the numerous vacant lots in the township, Newbury should encourage growing businesses to expand their current Conditional Use operation at 11220 Kinsman Rd.

Ms. Endres explained the zoning history of TRC Landscaping that grew from start in 1996 to 2002 and required an Area Variance to construct a new front building and allow processing of yard waste on a smaller scale with conditions that the piles remain in the rear, screened behind a fence.

Mr. Yeacker said the property is compromised by the stigma attached, by rumor or site history, real or imagined, with existing long-term monitored test wells. The EPA released the property after investigation “with no further action required”. He cited the Rt. 87 Corridor Vision: clean-up the rear area, maintain the semi-forested green area as a natural rear buffer and update the frontage and older buildings for improved curb appeal. It’s too early to tell, GVM is not the owner yet but the “Vision” is in their and the townships best interests as they have been doing business here since 1995. Mr. Wong reminded the board that composting is not permitted. If mulching is not composting, he offers a Conditional Use Permit as GVM is a tenant, not an owner.

Mr. Fidel asked about grass clippings – Mr. Gibney said they are mixed in with chips and shipped out as mulch particles. Mr. Gibney said there is a big difference between GVM processing and the former Sweet Peet composting operation. He said he was open to any agreement, amended wording or screening required. He said he wants to work with Newbury Twp; if there were any threat to the public, he would not be here. He has a model processing operation at 11220 Kinsman and decades of successful history.

Ms. Endres said the difference between compost and mulch is not defined, therefore not permitted. Ms. Brezina said that Sweet Peet was on a 3 acre lot, this 49+ acre site is much bigger but that is not the only criteria. What about the houses and the zoned B-1, R-1 lot split? Mr. Fidel asked about the height of the piles. Mr. Gibney said if he has room to expand the height of the piles can be lower; an advantage as he will lose less material from compression. Mr. Fidel asked about multiple drive use. Mr. Gibney said there would be one entrance and one exit with gates closed at night.

Mr. Fidel asked Ms. Endres to read to definition of a Conditional Use from the NZM.
“Conditional Use” means a use within a zoning district other than a permitted use requiring approval by the township board of zoning appeals and the issuance of a conditional zoning certificate.

Susan Wieland said the applicant could withdraw and reapply. Ms. Endres advised not to apply for a non-permitted use; to be legal it must be a permitted use. She suggested this would be an issue for the Zoning Commission (ZC). Mr. Fidel asked the ZC to look at these issues; Mr. Kitko, a ZC member in attendance, replied that the code could be amended by landowner request, cited the negative impact of the Sweet Peet hearings and residents appearing before the board for discussions on composting. At this time the ZC is completing work on two alternate energy topics. If asked by the lessee to consider mulch vs. compost, the ZC would be forced to act on this request. The primary ZC concerns were overflow containment to protect ground water and spontaneous combustion fires, the reasons for the code exclusion of composting.

Mr. Fidel asked if the definition for the Conditional Use can be revised. Mr. Skomrock, Sr. said “all have the right of appeal”. Mr. Gibney reminded all that Ms. Endres, not he, wrote “composting” in the denial. Mr. Smerigan said if a Use Variance is approved the aggrieved party has no standing to appeal. Mr. Fidel stated that in his over 40 years on the BZA, he has never granted a variance to a tenant. Mr. Smerigan cautioned that the BZA must deny the request, then appeal or go to the zoning amendment route. Mr. Wong questioned which was the best route.

Mr. Fidel’s opinion was that this was the perfect site for GVM. He questioned whether yard waste disposal is an agricultural problem – Mr. Smerigan replied no - per prior litigation.

Les Ober, an adjacent resident/property owner in the B-1, R-1 district, asked if Mr. Gibney lived on the site – answer not yet. He said he was a dairy farmer but the EPA shut him down because of the cow-manure runoff. The noise of the chipper and wind carried smells do affect neighbors. There’s been talk of clean-up of the Rt. 87 corridor. He asks trustees to stick to the plan, Rt. 87 is not a place for this type of operation.

Dave Paulitath of Burton-Scott, a next-door neighbor to the east, said whether it was trucking or mulching, as a commercial operation owner, the noise and/or smells were not objectionable. Mr. Kitko sees this as a reasonable operation that has an expansion EPA permit but GVM expanded their operation without zoning approval.

Douglas Ralston commended Mr. Smerigan on his expert presentation, that composting vs. mulching is against Newbury zoning code. This is the BZA responsibility, not the owners.

Griffin Ralston read his concerns from a prepared statement: who is responsible for clean-up, pesticide/herbicide runoff, potential lake contamination, granting the Use Variance would establish precedence to allow composting. As a small business owner he recommends GVM locate elsewhere.
John Manfredi, the present owner, acknowledged the site has 3 houses and offices with one of the 4 septic systems installed in 2006 and that the trucking operation ceased in April 09. In August 09 TRC had signed a lease with letter of intent to purchase the property. He expressed his willingness to work with the BZA and township and asked to be at the table to resolve any contingencies.

Mike Mobley said he runs the mulch grinder for TRC and spends time beforehand removing any dangerous or prohibited “stuff” from the final product. He sees an increase of customers to this business corridor and believes GVM will improve the property “better than it is now”.

Glen Quigley asked how the property is compromised when the wells are not in the mulching area and why it can’t be used for another permitted use.

Ms. Brezina stated that the property straddles two zoning districts, the buyer may be unwilling to purchase if this case should end in court. She believes Newbury Township created this hardship by not allowing this operation anywhere.

Bob Jefferson said the hardship was created by the current economic conditions.

Chip Hess asked for options if GVM buys the property.

Tom Sloe said the BZA should pass the Use Variance, this is a viable business and good for Newbury.

Susan Wieland reminded the board to apply the Duncan factors before voting to approve or deny.

Mr. Yeacker agreed many good opinions were heard but the BZA must apply the Duncan factors on facts, not opinions and must consider the Rt. 87 Corridor plan. Mr. Wong said the BZA represents the applicant and all the township residents and wants to see successful businesses remain. Mr. Yeacker said that if the BZA votes for approval, the township may lose in court.

Discussion continued whether zoning provides for mulching in the township, any viable legal options, possible conditions that must be relevant, continuance vs. withdrawal, etc. Ms. Endres acknowledged that GVM did not specify “composting” in their application.

Tezeon Wong moved for a continuance of this hearing to Friday January 28th at 6:30 p.m., to allow the BZA time to complete their deliberations; Chris Yeacker seconded the motion that passed by unanimous vote.

Mr. Fidel announced that all testimony was complete and no further testimony would be taken.
He adjourned this public hearing at 10:30 p.m.