BZA March 13, 2012 Green Vision

The Newbury Township Board of Zoning Appeals continuances of the 1/24/12 and 1/27/12 public hearing for a Use Variance for Green Vision Materials (GVM) was called to order by Mr. Ray Fidel, Chairman, at 7:30 p.m. on March 13, 2012 with Board members, Mary Lee Brezina, Tezeon Wong, Bill Skomrock Sr. and Chris Yaecker present. Mr. Fidel said testimony was completed 1/24/12 and no further testimony would be taken here. All in the audience who wished to speak were sworn in and asked to state their name when responding.
Mr. Fidel asked the board how they wished to proceed. Mr. Yaecker said he had requested this continuance to review the Jan 27, 2012 the Findings of Fact; the board made no comments at this time. Mr. Fidel reviewed the options: approve, deny (that could lead to a court suite/Judgement Entry) or withdrawal of the variance requests. Mr. Gibney said he understood these options.
Mr. Yaecker said he had problems with the lot utilization that surely would impact the neighboring properties: the proposed Ober residential development, a mega-dollar hotel at Panzica’s, concern over outdoor patios at Zeppe’s and the new winery due to open mid April and potential loss of future investments along the corridor. He questioned whether the BZA had the authority to grant this Use Variance whether the courts would uphold this decision when composting/mulching is not a permitted use in the zoning code. He submitted Exhibit A (1/24/12) from George Smerigan (GS) stating the research on the Duncan Factors was well researched and proposed using them as the Findings of Fact.
Mr. Fidel acknowledged that Mr. Smerigan was hired by the township for his opinion and questioned just how much of GS’s answers to use. He asked the board to review their Jan. 27, 2012 Findings of Fact (FF): * board comments added 3/13/12
1) The property is unique: it is environmentally impacted by the EPA mandated test wells with negative economic viability due to the attached stigma and long-standing rumors.
2) The former owner – * Manfredi family - created the present conditions,
3) There have been no written complaints regarding dust and noise during operation – * verbal complaints have been received from Zeppe’s, other neighbors, Mr. Gibney conceded wind-driven odor occurs when piles are turned/open,
4) The Geauga Health Commissioner ascertained “there were no significant public health issues” nor did he foresee any liquid overflow with the recommended bio-swale-disposal,
5) The spirit and intent of zoning cannot be met as Newbury zoning code does not allow composting, * mulching is operated now under a conditional use permit even though not a permitted use in the zoning code. Mr. Yaecker read GS response; Mr. Wong requested “strike out composting”.
6) A Use Variance is the minimum action to afford relief, * yes, a UV is minimum relief but does BZA have enough justification to grant a UV?
7) There are options for permitted uses that are economically viable in the B-1 district. * Mr. Fidel said there is always some use possible for any property but these lots split minimal B-1 and maximum R-1 zoning.

Mr. Fidel asked the board to speak up and called for a motion. Mr. Skomrock Sr. confirmed the option choices; aye, nay or withdraw. Mr. Wong said the BZA was convened on the applicant’s behalf but must consider issues affecting others. Ms. Brezina said her issues were not complicated: 1) the BZA should not adopt the attorney’s (GS) point of view but develop their own FF, 2) she is bothered by the applicant’s expansion onto another’s property without zoning permission, the piles are too high and too close to the road, the prevailing winds blow odors (? objectionable) away from Zeppe’s/Panzica’s and 3) the applicant submitted no plans for expansion in the B-1 district before owning the property. She said she must form her opinions from the applicant’s past actions. She questioned whether the BZA could grant this UV considering possible buffers, plantings, pile height/visibility, long-term decisions: what is vs. what might be – not reality.

Mr. Gibney responded that his prior expansion was an error in judgement, these actions are in the past, that he will correct all present violations and work for the future betterment of the township. He countered that he was operating here before Zeppe’s arrived, could not invest new money till the zoning status was confirmed, that there had not been one confirmed complaint regarding odor in the past 10 years and this hearing dealt with what is not what if.

Mr. Wong explained he had driven by the mulching operation in Hartville and observed no odors but conceded odors could be a problem. The BZA could consider the corridor esthetics but not odors without evidence. Mr. Skomrock Sr. confirmed the BZA had no written complaints but questioned whether the board’s FF were sufficient considering possible litigation and the impact of future business development in Newbury.

Mr. Fidel reiterated his opinion that this hearing should be handled as a conditional use (CU) permit with his specific recommendations: ** with B. Gibney’s comments
1) The applicant should commit to buy the property, ** BG said he was open to this,
2) Discuss mounds on 3 sides with evergreen plantings for visible shielding, noise and wind-driven odor.
3) Tear up old driveway asphalt to confirm to 75 ft. setbacks.
4) Monitor piles, both raw and finished, for 20 ft. max. height and 30 to 40 ft. spacing between piles for fire access ** BG said this was reasonable,

Mr. Wong asked clarification for multiple zoning districts of B-1, R-1 in a Judgement Entry. He disliked the “forever use” of a Judgement Entry in this case. Discussion continued regarding the Impullitti business on Rts. 87 & 44. Ms. Endres confirmed that landscapers were a legal, non-conforming use in the M-1 district. She confirmed the BZA can’t grant a conditional use not permitted in the zoning code. Mr. Fidel countered that a CU is granted to the business but does not stay with the property. Ms. Endres affirmed that each district has its own list of CU permitted uses. Mr. Yaecker quoted from Art. 17: the BZA cannot go beyond the powers granted to it.

Mr. Fidel asked the board for any more comments. Mr. Skomrock, Sr. said the rules made by township residents take away the applicant’s BZA right of appeal leaving only (3) costly court options.

Mr. Fidel asked the board for additional comments or questions. There being no more questions, Mr. Fidel called for a motion:
Chris Yaecker moved to deny (using GS FF) the Use variance as requested; Mary Lee Brezina seconded the motion. Mr. Fidel stated that a yes vote would deny the Use variance as requested.
The roll call vote was as follows:

Chris Yeacker yes
Mary Lee Brezina yes
Bill Skomrock, Sr. no
Tezeon Wong no
Ray Fidel no

The motion did not pass for lack of 3 affirmative votes.

At this time Mr. Fidel allowed Carl Manfredi to speak from the audience. Carl stated that Mr. Gibney is entitled to an answer. He then gave a brief history of the property and the Manfredi family ownership: his parents came from Sicily in 1914 for a better life, were fishermen, became farmers with brother-in-law ( who later started Micelli’s), split off 50 acres to farm with a solid-tired truck in 1918, moved in with 4 kids, no running water or indoor plumbing, no electricity, paved roads or volunteer fire department, made/sold bootleg wine during prohibition, saw the township progress with 4 self-sufficient groceries, 13 taverns and funded fire dept. with the growth/loss of Newbury Industries, Prots Bi-Rite and Great Lakes Cheese ( largest employer in the county), Manfredi’s sold with subsequent tax revenue losses to the township. His former growth philosophy of spending each dollar 20 times within the community has changed to excess vacant land for exurban residential, business services with no grocery store and minimum retail shops. Mr. Ralston asked if he intended to convert the current houses into offices for doctors, dentists, accountants, etc. Carl replied he always envisioned growth/development west to Auburn Rd.

Mr. Wong said he had a problem with a Use Variance that permanently stays with the land instead of restrictions for periodic review of conditions. Discussion continued regarding the Land Use Plan, amending the application and time limit restrictions.

Mr. Fidel asked Mr. Ralston if he were interested in buying the Manfredi property? He replied “if the price was right” commenting that the land could be put to much better use and “mulch piles don’t pay taxes”.

Mr. Gibney stated he is open to future development but the economy now is in a stalemate forcing decisions in-hand vs. what might be, acknowledging business in Newbury has regressed vs. more vibrant Middlefield/Chardon, concluding that some business is better than no business.

Mr. Wong agreed that Mr. Gibney’s business impacted others in the community but also stated that no court ever denied a current use vs. a future possible use. Mr. Gibney stated his current use is legally doable with compliance required by EPA and health department standards. Mr. Yaecker stated the BZA are not planners and must use the “Vision Plan” as an umbrella.
John Manfredi asked whether they must go forward or possibly go back because everyone involved wants to work toward the most viable solution: same options – aye, nay or withdraw.

Mr. Fidel asked the board for additional comments or questions. There being no more questions, Mr. Fidel called for a motion:
Mr. Wong moved to approve the Use Variance – there was no second to this motion.

Chris Yaecker moved to rescind his original motion to deny (that did not pass for lack of 3 affirmative votes) and replace it with this new motion to deny the Use Variance request as presented, using the Jan 27, 2012 BZA Findings of Fact;
1) The property is unique: it is environmentally impacted by the EPA mandated test wells with negative economic viability due to the attached stigma and long-standing rumors.
2) The former owner created the present conditions,
3) There have been no written complaints regarding dust and noise during operation,
4) The Geauga Health Commissioner ascertained “there were no significant public health issues” nor did he foresee any liquid overflow with the recommended bio-swale-disposal,
5) The spirit and intent of zoning cannot be met as Newbury zoning code does not allow composting,
6) A Use Variance is the minimum action to afford relief,
7) There are options for permitted uses that are economically viable in the B-1 district.
Mary Lee Brezina seconded the motion. Mr. Fidel stated that a yes vote would deny the Use variance as requested.
The roll call vote was as follows:

Chris Yeacker yes
Mary Lee Brezina yes
Bill Skomrock, Sr. no
Tezeon Wong yes
Ray Fidel yes

Mr. Fidel informed the applicant his Use variance request was denied. Mr. Gibney agreed to withdraw his pending Area Variance request.

Mr. Fidel read to the Appellant and audience, “Within 30 days after service of the minutes denying your request, if someone wishes to challenge this decision through the court, he or she may. The challenge could reverse or negate our decision. 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 recommended:
1) That Mr. Gibney file an appeal during the 30 day window,
2) that Mr. Gibney be allowed to operate his business during any appeal process,
3) if he should lose his appeal, he be allowed up to one year to remove the piles and restore the property.
Mr. Wong agreed a judge should settle the questions raised during this hearing.

Mr. Fidel adjourned the hearing at 9:25 p.m. As the applicant left, Board members wished him good luck.

Marge Hrabak
Secretary