BZA January 4, 2011 Frank

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 4, 2011 with Board members, Mary Lee Brezina, Tezeon Wong, Bill Skomrock Sr. and Glen Quigley present.

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:

Rich and Diane Frank request an area variance for the expansion of the use of a 1440 sq.ft. barn with an agricultural exemption to be used for residential storage. The barn is 39 ft. from the rear lot line and 17 ft. from the west lot line (vs. Art. V, Sec. 5.05 - 50 ft. rear and 30 ft. side setbacks) and located at 12031 Snow Rd.

Mr. Fidel acknowledged the application for a woodshed and a windpower/storage shed built 15 ft and 5 ft respectively from the rear lot line. Ms. Endres presented photos for the board review.

Mr. Fidel asked the applicant to state his case. Mr. Frank said he believes his 2 acre lot doesn’t fit the current 3 acre zoning that should not apply here. The house and barn were there when he purchased the property and his backyard is limited to 30 ft depth x 250 ft width. Mr. Fidel asked where the septic system was – Mr. Frank showed the location on the projection photo with the tanks on the side and leach lines in front of the house. He said he wanted to expand the woodshed that served the outdoor furnace in the rear. He presented the legal description of the property when purchased that had not been properly surveyed. He said he had 8 years of complaints from his “most un-neighborly” Mr. Moodie.

Mr. Fidel said this was a dispute between neighbors but not a matter the board could address. He asked the board to first consider the barn application originally built for agriculture and now used for goats, chickens, hay and odds & ends. Ms. Brezina asked about the barn addition after purchase. Ms. Endres confirmed that the first floor was still used for livestock and the second floor addition was used as a workshop – seen on photos. Ms. Brezina asked about the house addition – used as a sunroom.

Mr. Frank said he moved to Newbury from Parma and believed he built according to the law for agricultural structures. More statements were made regarding his neighbor’s actions: Mr. Fidel asked Mr. Frank to stop blaming Mr. Moodie. Mr. Wong asked Mr. Frank to stay within the application, Mr. Quigley said the board must comply with the law and was not here to resolve disputes between neighbors.

Ms. Endres explained the agricultural exemption’s restricted use, the structures were not inspected by the building department and the usage change to residential allowed more options.

Mr. Skomrock asked why it was necessary to change to residential status and summarized the history of the barn: the lot was split off from the larger farm, the barn was there prior to the zoning change making it non-conforming, the barn should be grandfathered – we are “beating a dead horse” here. Ms. Endres responded that the agricultural exempted structure should comply

with zoning, the remedy for a blended use would be a typical Area Variance now before the board. Discussion continued regarding the expanded use to store hay, possibly adding conditions.

Mr. Fidel asked Mr. Moodie to speak. Mr. Petersen acknowledged he was here representing Mr. Moodie and would speak for him. He asked Mr. Frank whether he was running a heating and cooling business from his house. Mr. Frank replied he was a journeyman who replaced heating, cooling and hot water systems in other people’s houses and acknowledged his heating phone number was located in his residence. Mr. Petersen asked if Mr. Frank had a permit before or after he built his additions – Mr. Frank said he didn’t know he needed a permit for either the woodshed or the windpower structure that was 5 ft. from the property line. Ms. Endres said she uses Access Geauga maps that are not survey accurate; Mr. Frank drew the property line on the photo – Mr. Moodie acknowledged “that’s about right”. Mr. Petersen said the proposed woodshed addition was not within the side or rear setbacks. Ms. Endres explained that the woodshed (located 15 ft. from the rear line) could be classified agricultural if the wood were harvested from the property.

Mr. Quigley asked Mr. Frank to consider “which serves the greater good” – agricultural, with no expansion possible, vs. residential with many more use options. Ms. Brezina cautioned that future owners may object to the legality of these structures’ setbacks. Discussion continued regarding wood-working not conforming to agricultural exemption and expanded storage options. Mr. Fidel said the residential use change was for Frank’s own good for future barn storage. Ms. Endres reiterated that any construction requires an application although agriculture has certain exemptions.

Mr. Quigley asked Mr. Frank if his application stands as presented for the change to residential use presents minimum zoning relief – Mr. Frank replied yes.

Mr. Quigley moved to grant the variance request for the barn as presented; Ms. Brezina seconded the motion. Mr. Petersen said this was a Use Variance – no, the change is a permitted use in the residential district. Mr. Fidel called for a roll call vote:

Glen Quigley yes
Mary Lee Brezina yes
Tezeon Wong no
Bill Skomrock, Sr. no
Ray Fidel yes

Mr. Fidel asked the board to consider the windpower/storage shed application. Mr. Frank said he picked the location for the windiest un-obstructed site for the windpower device. Ms. Brezina objected to the site 5 ft from the rear line as it will cause trouble in the future. She described her own situation with new neighbors and property line disputes. Mr. Frank said he knows where the line is as he paid for the new survey. Mr. Petersen said this minimum lot, when created, had setbacks and these structures were never in compliance with zoning. The existing building has no permit; even though structures under 120 sq.ft. require no permit, they must not be placed

within the setbacks. Ms. Endres read her denial for the structure/expansion within the 50 ft. rear setback. Discussion continued regarding violations, enforcement and variances – timetable, duties and legalities.

Mr. Wong said that 5 ft was too close to the line and asked Mr. Frank to find another location. Mr. Frank said the wind power device was a 300 watt generator providing feedback electricity that saves up to 1/3 of his electric bill when in full operation. He said he could move the shed but not to the best wind location anywhere else. Ms. Endres confirmed the 50 ft. height limitation for wind devices that did require a permit. Discussion continued regarding the 10 ft high wind device and the “fall area” vs. line setbacks. Mr. Frank said he could relocate the wind device to the top of the barn which is 30 ft wide.

Mr. Quigley asked Mr. Frank why he objected to amending his application and explained that he could not amend after the board voted. The barn expansion was picked up from the 2008 aerial photos. Mr. Quigley said the board was trying to help him without incurring future additional expense. Ms. Endres said she would need an amended site plan to issue a permit – the shed could be located anywhere in compliance with the setback limitations.

Mr. Frank agreed to amend his application to allow relocation of the 300 watt wind device to the ridge of the barn and the shed to permitted areas in compliance with the setbacks.

Tezeon Wong moved to accept the amended application to allow relocation of the wind device to the ridge of the barn and the shed to permitted areas in compliance with the setbacks – to be completed by September 1, 2011. Glen Quigley seconded the motion that passed by unanimous vote.

Mr. Fidel then introduced the application for the woodshed/expansion that was built without a permit 15 ft. from the rear lot line. Location of the septic system tanks (on the side) and leach lines (in the front of the house) was reviewed. Discussion continued regarding agricultural exemptions - if wood is harvested on the property, possible relocation sites within the setbacks, moving the furnace – has underground piping to the house vs. moving just the woodshed 90 or 180 degrees – furnace door opens “wrong side”. Ms. Brezina said the relocation should conform as much as possible. Ms. Endres suggested relocating the woodshed within the house setback.

Mrs. Frank questioned what impact on property values, if any, allowing the woodshed to remain as is could have on the neighbors – “it is not bothering anyone”. The board must consider this as a self-imposed hardship as it was built without a permit. Mr. Wong said the board was looking for the best way to alleviate the hardship. Ms. Brezina said the board is not placing “blame” but must consider the rights of future development owners. She said Mr. Frank needs to take action now to be in compliance and avoid future problems and expenses.

Mr. Yaecker said this appeal by a neighbor represents a significant variance. Mr. Wong said the building could be moved, the problem was self-imposed. Mr. Skomrock said he favored leaving the woodshed/addition as built/proposed.

Ms. Brezina moved to deny the request for the woodshed/addition within the setback area. There was no second to this motion. Mr. Wong explains ways to move the building so the board could consider a modified appeal within the rear setback. Mr. Petersen said Court of Appeals found that the furnace was not considered a structure. Mr. Fidel suggested rotating the woodshed 90 degrees.

Mr. Wong asked Mr. Moodie who said “it must conform to zoning”. Mr. Frank asked Mr. Moodie “what is it hurting him?” – Mr. Moodie refused to answer per Mr. Petersen’s advice.

Ms. Brezina said she would withdraw her motion if the application were amended. Mr. Frank asked if the woodshed/addition could be built “in line with the house, about 34 ft?” If yes, Mr. Frank said he would amend his application accordingly and submit a revised site plan.

Mr. Quigley moved to accept the revised application to remove the existing woodshed and relocate the woodshed/addition no closer to the rear lot line than the house setback line with the furnace location included in this variance - to be completed by December 31, 2011; Mr. Wong seconded the motion.

Mr. Fidel asked the board and the audience for additional comments or questions. There being none he called for a roll call vote saying a yes vote would approve the motion:

Glen Quigley yes
Mary Lee Brezina yes
Tezeon Wong yes
Bill Skomrock, Sr. yes
Ray Fidel yes

Mr. Fidel advised the applicant his amended variance request was granted.

Mr. Fidel read to the Appellant and audience, “Within 30 days after service of the minutes granting your request, if someone wishes to challenge this decision through the court, he or she may. The required permit can be issued once all requirements regarding this application are satisfied, although if you plan construction it is recommended you wait the 30 days before proceeding. The challenge could reverse or negate our decision. At the time you receive your permit you must also comply with all other requirements of Newbury Township zoning”.

Mr. Fidel informed the Appellant and the audience that the 30-day period commences with the Appellants’ signing receipt of the signed minutes. They will be mailed registered return receipt to the Appellant. All persons receiving notice of the hearing will receive copies of the minutes.

Mr. Fidel adjourned the BZA hearing at 10:15 p.m.

Based on the following FINDING OF FACTS for the amended woodshed/addition to remove the existing woodshed and relocate the woodshed/addition no closer to the rear lot line than the

house setback line with the furnace location included in this variance - to be completed by December 31, 2011:

1) The parcel could yield a reasonable return without the variance.
2) The variance is not substantial as the 35 ft setback is in line with the house.
3) The essential character of the neighborhood would not be substantially altered and the adjoining property owners would suffer no detriment as a result of this variance.
4) The variances have no effect on delivery of governmental services.
5) The owner purchased the property without specific knowledge of these zoning restrictions.
6) The property owner’s predicament could not be obviated through some method other than the variance that allows no further encroachment than the existing house.
7) The spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variances. Such other criteria, which the Board believes relates to determining whether the zoning regulation is equitable; the adjacent property owner in attendance was able to address his concerns with the board for this amended variance. There were no other neighbors in attendance.

FINDING OF FACTS for the red building/wind power device are not required: based on the amended application the red building/wind power device moved to the barn and/or within the setback limits are now in compliance – no variance is needed.

Based on the following FINDING OF FACTS for the barn:
1) The parcel could yield a reasonable return with the agricultural use changed to a permitted residential structure.
2) The variance is substantial but the original barn was built before property was bought.
3) The essential character of the neighborhood would not be substantially altered and the adjoining property owners would suffer no detriment as a result of this variance.
4) The variances have no effect on delivery of governmental services.
5) The owner purchased the property without specific knowledge of these zoning restrictions.
6) The property owner’s predicament could be obviated through some method other than the variance if the barn retained the agricultural exemption.

7) The spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variances. Such other criteria, which the Board believes relates to determining whether the zoning regulation is equitable; the adjacent property owner in attendance was able to address his concerns with the board. There were no other neighbors in attendance.

Additional information relevant to the Mr. Excavator hearings was distributed to the board members. Discussion continued regarding whether Findings of Fact should be done before or after voting. Mr. Yaecker offered that decisions that may be challenged should complete the

Findings of Fact before voting. Ms. Brezina said she preferred addressing FF just with the board present.

Mr. Fidel adjourned the BZA meeting at 10:30 p.m.

Marge Hrabak. Secretary