PLANNING BOARD SPECIAL MEETING JANUARY 31, 2007 Adequate notice of the meeting has been posted and published as required by law. The meeting will start at 7:00 PM and adjourn at 11:00 PM. The Pledge of Allegiance was recited by all present. ROLL CALL PRESENT ABSENT Mr. Cobuzio, Mr. Conte, Mayor De Nicola, Mr. Friscia, Mr. Gostkowski, Mr. Lauber, Mr. Palmieri, Mr. Pullaro, Mr. Roberts, Mrs. Vierheilig Mr. Bohrer John Spizziri, Planning Board Attorney Kevin Boswell, Borough Engineer Nancy Durkin was present to do this meeting for Maria Berardi, Planning Board Secretary. FLK-2213 LEONARD DEVELOPERS, SOIL MOVING PERMIT, POOL, SLOPE VARIANCE, 865 OLENTANGY ROAD, BLOCK 2101.11, LOT 9 (5 TH HEARING) (4 TH HEARING 1-17-07) (3 RD HEARING 11-1-06) (2 ND HEARING 10-4-06) (1 ST HEARING 9-20-06) (THIS WAS RESCHEDULED FROM 12-6-06 TO 1-17-07 AS PER THE REQUEST OF JOHN SPIZZIRI) Mr. Douglas Kinz, the applicant, Mr. De Vito, the objector s attorney and Dr. Lesko, the objector were present. Mr. Spizziri stated that for purposes of the record there have been a number of Members who have missed certain meetings on this application. Some of these Members have signed Affidavits and are now eligible to vote. Mr. Cobuzio missed the September 20, 2006 meeting he has signed an Affidavit that he has listened to the CDs. Mr. Conte missed the October 4, 2006 and the September 20, 2006 meetings he has signed an Affidavit that he has listened to the CDs. The Mayor has not yet signed an Affidavit. Mayor De Nicola stated that she read the transcripts from the earlier meetings. Mr. Spizziri asked if she listened to the CDs. Mayor De Nicola stated that she attended those meetings. Mr. Spizziri stated that Mr. Friscia is eligible to vote. Mr. Gostkowski missed the October 4, 2006 meeting he has signed an Affidavit that he has listened to the CDs. Mr. Lauber is eligible to vote. Mr. Pullaro missed the September 20, 2006 meeting he has signed an Affidavit that he has listened to the CDs. He asked Mr. Palmieri if he has listened to the CDs. Mr. Palmieri stated that he has not listened to the CDs.
PAGE 2 Mr. Spizziri stated that Mrs. Vierheilig and Mr. Roberts are eligible to vote. The Members who can vote on this application are: Mr. Friscia, Mr. Lauber, Mrs. Vierheilig, Mr. Roberts, Mr. Gostkowski, Mr. Pullaro, Mr. Cobuzio and Mr. Conte. He asked if the counsel for the applicant or the counsel for the objector have any objections to that. There were no objections from either counsel. Mr. Conte stated that this a Special Meeting for the Leonard Developers application located at 865 Olentangy Road. Mr. Friscia asked if Mayor De Nicola can vote on this application. The Mayor had stated that she read the transcripts and was present at the meetings. Is that sufficient for her to be able to vote? Mr. Spizziri explained that the statutory requirement is that she read the transcripts or listen to the CDs to be eligible to vote. The Mayor cannot vote unless she signs an affidavit that she has listened to the CDs. Mr. Friscia stated that this could be done now. Mayor De Nicola stated that she read the transcripts. Mr. Friscia stated that it should say that she was present for the testimony. Mr. Conte made up an Affidavit form for the Mayor to sign. Mr. Friscia asked Mr. Conte if he knew about the content of the material that is before us tonight. Mr. Conte stated that this is the packet for the February 7, 2007 meeting. Mr. Spizziri stated that Mr. Friscia has been appointed as Council Liaison to the Planning Board. This constitutes a Class III membership to this Board. Mr. Friscia has not been sworn in or given the Oath of Office. He gave Mr. Friscia the Oath of Office as a Class III Member, one-year term. Mr. Conte gave the form to the Mayor to sign. There is a signed Affidavit from Mayor De Nicola stating that she read the transcripts of the meetings for this application. A motion to reopen the Public Hearing for this application was moved by Mr. Pullaro and seconded by Mr. Lauber. All in favor (aye). Mr. Kinz introduced himself. When we concluded the last time Mr. Rotonda, Dr. Lesko s engineering expert had finished his testimony. The Board had posed some questions. He wanted to conduct his cross-examination of Mr. Rotonda. Before that he wanted to hear from Mr. Boswell. Mr. Conte stated that Mr. Boswell is in route. He asked Mr. Kinz if he would like to hold his crossexamination of Mr. Rotonda until Mr. Boswell arrives. Mr. Kinz wanted to proceed with his cross-examination of Mr. Rotonda.
PAGE 3 Mr. De Vito stated that all that is left tonight is for Mr. Kinz to cross-examine Mr. Rotonda and the direct examination of Dr. Lesko regarding this disc. Mr. Kinz stated that he has a rebuttal witness, an engineer by the name of John De Grace. He will testify to what Mr. Weissman has testified to. Unless the Board wants to hear that, he will defer from calling him. Mr. Conte stated that Mr. Kinz should proceed as he feels it is necessary for his case. Mr. Kinz thanked the Board for being here this evening. He questioned Mr. Rotonda. You stated that you were at the site several times. Is that correct? Mr. Rotonda stated, Correct. He was at the Olentangy Road property several times and Dr. Lesko s property. Mr. Kinz asked Mr. Rotonda if he took any notes regarding his investigation in this case. Mr. Rotonda stated, Yes. Mr. Kinz stated that if there is a drainage issue and there is a question as to if the drainage will work properly you would want to know when you go out to the site if it is raining so that you can observe the drainage of the properties. Mr. Rotonda agreed with that statement. When he went out to the site there was standing water but it was not raining. Mr. Kinz showed Mr. Rotonda the transcript of the January 17, 2007 meeting. He read from Page 44 starting at Line 13. I conducted several site visits through November. Several times it was raining or directly after rainfall activities. Was it raining or was it not? Mr. Rotonda stated that he had notes from one of his visits to determine if there was a problem. He was there several times. He entered through the front of the property. According to his notes it was not raining the date he was there. He was concerned about the driveway area and the left side of Dr. Lesko s property. He did not recall seeing a pool on the site. He never walked the front right or the rear right of the property. Mr. Kinz referred to Exhibit A-6, which shows where the pool is located on the property. At the last meeting, you stated that you spoke to Dr. Lesko about the existing water conditions on his property. Mr. Rotonda stated, Yes. Mr. Kinz asked, Did he give you a history of what had transpired on his property? Mr. Rotonda stated, Not a history. He did tell him about the increases on his property. He observed standing water on Dr. Lesko s property. Mr. Kinz asked, Did he tell you that the increases of standing water on his property have been from approximately 20 years ago due to the covering up of a natural drainage ditch?
1-17-07 PAGE 4 Mr. Rotonda stated, No. He was aware of that and he discussed it with the Borough Engineer directly. He was aware of a ditch that traversed Olentangy Road down to Apache Road. The easement has been filled over time and piped. Mr. Kinz asked, Did anyone tell you that prior to the piping of this culvert that there had been no water problems on Dr. Lesko s property? Mr. Rotonda stated that he did not ask that question and he was not told this. Mr. Kinz asked, Did anyone tell you that since the filling of the easement and the piping of this culvert Dr. Lesko has had severe drainage problems? Mr. Rotonda stated, No. He did not have any knowledge of this and did not know if this is correct. The overall assessment of the site conditions is based on the variance application that is being presented by your application. If there is another situation that exists on the site that contributes to or exacerbates a situation that is there he may want to know about it but it may have no bearing as to whether or not it affects Dr. Lesko s property from today going forward. Mr. Kinz stated that Mr. Rotonda testified that his client s drainage system would fail. Is that correct? Mr. Rotonda stated, Yes, I did. He clarified that he said he did not think it was the proper application for this situation. Mr. Kinz stated, Didn t you testified that Mr. Boswell told you that this system would fail? Mr. Rotonda stated that he testified that Mr. Boswell had recommended to him a hard pipe system. Mr. Kinz asked Mr. Rotonda to go to Page 54 of the transcript. Mr. De Vito asked you, Did he (Mr. Boswell) in fact tell you that this is going to fail? Your response was Yes, he did allude to the fact that the system was going to fail. On Line 20, Page 54, again alluding to Mr. Boswell, And in that conversation that would be from one professional to another, he told you and you valued the fact that he told you that this system is going to fail? Your reply was Yes. Is that correct? Mr. Rotonda stated, Yes. He did not take into account the existing water conditions on Dr. Lesko s property. Dr. Lesko s property is below this property. He is interested in the recent increase of water on Dr. Lesko s property. Mr. Kinz read Dr. Lesko s testimony in a transcript of February 16, 2005. The Board had a copy of this transcript. This testimony was given at the time of the application for the house. He read from Page 26, Line 1, My property, the edge of my property, even though the creek did not come through the edge of the property, had a ravine ledge that allowed the water from my property, to run into the creek. Once the creek was sealed, I now have ponding and flooding on the lower portion of my property every time it rains. Both 865 and 864 Apache Road then had to put in French drains in their basements to keep their basements dry after that was done. When you testified at the last meeting that this pool will make the drainage situation on Dr. Lesko s property worse than it is today, isn t it necessary for you to know what the drainage situation has been on that property in the past in order to assess whether or not it will be made worse?
PAGE 5 Mr. Rotonda stated, No. The fact that the existing conditions with the proposed variances are going to increase the volume of water that is going to be coming down that hill is what he is testifying to. There will be an increase. Mr. Kinz stated that Mr. Rotonda characterized Mr. Weissman s drainage design as simple and rationale. Mr. Rotonda stated, It was the rationale method design. He was referring to the design type when he stated rationale. A rationale method is a type of design that is an approximation based on ground cover, runoff coefficients and rainfall intensity for certain storms. Mr. Kinz stated that this is a typical design for a single-family residence. Correct? Mr. Rotonda stated, Yes, it is. Mr. Weissman s design took into account a volume or a storage. He made an assumption that the ground would absorb that extra water. His testimony was that due to the slope of the ground that water had an opportunity to run out which is what it was doing at the rear portion of the site. He did not physically see it. He did not dig any test holes or do any percolation tests on these properties. Mr. Kinz asked what measurements were used to determine whether or not the water was running out. Mr. Rotonda stated that Mr. Weissman had done test pits for the septic system. That determined the type of soil that was in the ground. With that information and the mapping he reviewed, he determined that the soil consistency was a fast moving material. There was a good possibly that the groundwater running through here and the slope of this property could run down to Dr. Lesko s property. Dr. Lesko informed him that he was seeing an increase from the existing design. Based on good engineering practice, he reviewed the issues that pertain to this. He did not do any testing on the Olentangy property. Mr. Kinz asked that an exhibit be marked for Identification. Mr. Spizziri marked as Exhibit A-9, a letter dated November 8, 2006 to Mr. De Vito from Mr. Kinz consisting of a document dated September 21, 2006 on the letterhead of Weissman Engineering, a portion of a pool plan, several pages showing part of the various pool plans and a UPS confirmation of the delivery. Mr. Kinz stated that the letter was addressed to Mr. De Vito not Mr. Rotonda. He read the second paragraph. Please have your client s engineer review the plans and contact Mr. Weissman directly to advise as to whether he would require any additional safeguards to guard against runoff to Dr. Lesko s property. He asked Mr. Rotonda if he ever contacted Mr. Weissman in this regard. Mr. Rotonda stated that he did contact Mr. Weissman. Mr. Kinz stated that Mr. Rotonda contacted Mr. Weissman on the day of the last meeting, January 17, 2007. Mr. Rotonda stated that he spoke with Mr. Weissman in January but he did not know the exact date.
PAGE 6 Mr. Kinz asked Mr. Rotonda if he ever asked Mr. Weissman if he could come to the site to perform any of these engineering tests to determine whether or not the bleeding that you suspect to be happening onto Dr. Lesko s property is in fact more than a good possibly. Mr. Rotonda stated, No, I did not. Mr. Kinz asked Mr. Rotonda if he performed any drainage calculations on any type of year storm with any amount of rainfall. Mr. Rotonda stated that he performed a number of different calculations on the runoff coefficients and on the intensities that Mr. Weissman had presented. He felt that they were appropriate. He read a Boswell letter regarding the drainage calculations. Mr. Kinz asked Mr. Rotonda, In the letter from Mr. Boswell was there any reference or suggestion that in his opinion the system designed by Mr. Weissman was going to fail? Mr. Rotonda stated, No. Mr. Kinz read from the transcript of the January 17, 2007, Page 60, Line 12 of Mr. Rotonda s testimony. What I had been suggesting is that the fact you are on a downhill slope of a property that you filled and we are going to continue to fill it, coming closer to the neighboring property without any protection for the lower property, in my opinion is a bad idea considering what I saw on the site and the fact that there probably now exists drainage problems. You could not physically see them. I was not there when it was raining. I was there after it was raining. Mr. Rotonda stated that unless there is water traversing the site you cannot see it but there are remnants of it. There are certain flow patterns left in the ground and misplaced leaves and debris. Mr. Kinz had no further questions of Mr. Rotonda. Mr. De Vito asked, Would you have more standing water on Dr. Lesko s property after a rainfall due to the construction of the home on the Olentangy property? Mr. Kinz objected to this question. Mr. Rotonda stated that the drainage calculations measure the rate of runoff. Standing water may not increase due to the conditions on the site. Mr. De Vito stated that there are severe elevation changes and severe slopes on the property. Mr. Rotonda stated, Yes, there are. This is a one-acre lot. There are some significant grade changes on this lot Mr. De Vito stated that a typical or standard seepage pit installation is a solution to this type of situation. Is that correct? Mr. Rotonda stated, That a higher level of care could be taken considering that there is a variance. Mr. De Vito asked, In your opinion, aren t the seepage pits proposed inappropriate and inadequate for the condition that exists in this particular location?
PAGE 7 Mr. Kinz objected to the question. Mr. Cobuzio stated that the Board granted a special meeting for this application. If he had known that this was going to go on like this he would never had made the motion to have this special meeting. Mr. Kinz stated that he did waive cross-examination of Mr. Rotonda. Mr. Conte asked Mr. Boswell to testify at this time. Mr. De Vito asked, Whose witness is Mr. Boswell? Mr. Lauber stated that Mr. Boswell is the Board s witness. (The Clerk requested that Mr. Boswell attend this meeting). Mr. Spizziri swore in Mr. Boswell. Mr. Kevin Boswell introduced himself. Mr. Kinz asked Mr. Boswell if he reviewed the pool application for Olentangy Road. Mr. Boswell stated, Yes, I did. Mr. Kinz asked Mr. Boswell if he reviewed all the revisions to the pool plan. Mr. Boswell stated that he and his staff reviewed these plans. Mr. Kinz asked, Did you prepare comments based on those reviews? Mr. Boswell stated, Yes. Mr. Kinz asked, Do you recall having a conversation with Mr. Rotonda regarding the drainage system proposed by Mr. Weissman for the pool? Mr. Boswell stated, Yes. He informed the Board as to the content of his conversation with Mr. Rotonda. On January 17, 2007, Mr. Rotonda called him to speak about an alternate engineering solution. It was his understanding that an alternate solution would be something that would be discussed. He informed Mr. Rotonda that he had a prior discussion with Mr. De Vito and Mr. Alleghi concerning a possible alternate solution. In an effort to bring further relief to Dr. Lesko, Mr. De Vito was asked to speak with Dr. Lesko to see if there could be cooperation between the two parties. It was suggested that Dr. Lesko could grant an easement across his property. Mr. Alleghi was asked if he would be willing to revise the drainage system and fund the cost of a piped system through Dr. Lesko s property if Dr. Lesko was willing to grant an easement. He informed Mr. Rotonda that this was the discussion that occurred. Mr. Alleghi stated that he thought it sounded like a lot of money but he would get back to him. Mr. De Vito had stated that he would check with his client and get back to him. He informed Mr. Rotonda that he had not heard from either of these parties. He had no further comment at all as to whether or not he believed the existing system was going to fail. There was silence regarding that. The only reference to the viability of this system was Dr. Lesko s perception. We have in the past asked that the parties come together to come to a solution of their problems, which benefits both parties.
PAGE 8 Mr. Kinz asked, What would the alternate system you discussed consist of? Mr. Boswell stated that it would be a piped system across Dr. Lesko s property with the benefit of an easement located on Apache Road. He did not investigate the distance to the nearest inlet on Apache Road. He did not state whether or not the existing system would work. The three seepage pits proposed for the pool are more than what is required by the Ordinance. The standards that Mr. Weissman used for the seepage pits are what are used in the Borough. Mr. De Vito questioned Mr. Boswell. He stated that these seepage pits are taking the water that is on the site and putting it into the ground. Is that correct? Mr. Boswell stated, Yes. Mr. De Vito stated that these seepage pits do overflow. Is that correct? Mr. Boswell stated that if the volume of water around it for the particular seepage pit is exceeded, Yes. Mr. De Vito stated that this application requires a variance for slopes on the property. Is that correct? Mr. Boswell stated, Yes. Mr. De Vito stated that there was a slope variance granted for the house. Are there slope variances requested for the pool? Mr. Boswell stated that the applicant is requesting variances on the property, which has received prior variances for the prior construction. He has been trying to get the parties together to rectify the water problems on Dr. Lesko s property. Despite the fact that the Ordinances may be fulfilled, Dr. Lesko s personal satisfactions and perceptions may be different than the edicts of the Borough. Mr. De Vito asked Mr. Boswell a hypothetical question regarding an assumption as to Dr. Lesko having an increase to his water problems due to the construction of the home on Olentangy Road. Mr. Kinz objected to this hypothetical question. Mr. Spizziri stated that Mr. Boswell could answer this question. Mr. Boswell answered the question. In the past year and one-half, we have had some of the wettest seasons on record. We have had drainage problems all over the Borough. Dr. Lesko may not be aware of these other problems. His perception is that his problem is much worse now because a new house went up behind him than before the house was built. That may be correct but the rationale for that problem may not necessarily be just that house. It could be that we have had a very, very wet year on record. Mr. De Vito wanted Mr. Boswell to assume that if the rainfalls were identical for the last ten years and that the only thing that changed was the Olentangy house, would it then be fair and reasonable to say from an engineering standpoint that with a reasonable engineering degree of probability that it is related to the construction? Mr. Kinz objected to the question.
PAGE 9 Mr. Conte asked Mr. Boswell not to answer that question. He did not see merit to it. Mr. De Vito had no further questions of Mr. Boswell. Mr. Conte asked Mr. Boswell if he had anything further he wanted to add to his testimony. Mr. Boswell stated, No, I do not. Mr. Lauber stated that the drain is at the base of the driveway of Dr. Lesko s house. There is a catch basin there. Mr. Pullaro stated, Kevin, I take it that you have complete confidence in this drainage system as it was designed by Mr. Weissman. Mr. Boswell concurred with the sizing of the pits and the method used for the calculations. When they do the excavation, an inspection will be done to verify the permeability of the soil. This is standard practice. He was reviewing it further today. The way the system is designed there is 300% of the volume necessary to meet the standards for the impervious. He suggested that there be an overflow system that overflows into the next and into the next. In this way, you could take full advantage of the volume of the other pits. This would give extra protection for Dr. Lesko. Mr. Pullaro stated that Mr. Boswell is telling this Board that he does not see any affect of drainage on Dr. Lesko s property. Mr. Boswell stated, I do not. The standards of design are practiced town-wide exactly the way we are talking about and they are using 300% of the volume necessary to achieve the stormwater detention criteria as per the Ordinances. Mr. Pullaro stated if that is so, why did you enter into dialogue with these parties about putting in a different kind of drainage system. You suggested putting in a hard pipe and piping water out of there. What was the reason why you felt it was necessary for you to try to broker a deal? Mr. Boswell stated that he saw people spending a lot of money on attorneys. He thought that as the Borough Engineer rather than have them spend money on things that would not be looked upon on mitigating an issue, an existing issue, a proposed issue it could be put towards making the condition better than it currently is. Mr. Pullaro asked, Isn t up to the Board to choose whether this is a good application or not a good application? Mr. Boswell stated, It could be, Yes. Mr. Lauber asked Mr. Boswell, If you took one tank and piped it out, would that be sure or less likely to get screwed up? Mr. Boswell stated that it requires a number of things to occur. The overflow of a hard connection is a more desirable situation. In this case you would have an overflow of the seepage pits situation. The issue is the excessive volume proposed by the applicant.
PAGE 10 Mr. Lauber stated that there is a problem now. Putting more water into the ground is not the answer to the problem. The answer to the problem is a pipe. Mayor De Nicola wanted to confirm Mr. Boswell s statement that Dr. Lesko may be correct in his observation or his perception that his water problems have increased since the house was built behind him. Mr. Boswell stated that he is not saying that Dr. Lesko is correct or incorrect. He might be because it was a very wet season. He was not disputing the observations of Dr Lesko. Mayor De Nicola stated that she is on the Board also to represent all the residents and the neighbors around that application. She did not know if the people who are concerned really object to the application. They want to protect their own property. In light of that fact, we want to have the applicant move forward with what they want to do and also protect the surrounding properties. If you as the Municipal Engineer, lived in Dr. Lesko s property what would be the drainage system you would like to see? Mr. Boswell stated that this involves the applicant and Dr. Lesko coming together to resolve their problems. He understood what Mr. Pullaro was saying. If people can work things out together, more gets done. Mr. Alleghi is within his rights to meet the standards of the Ordinance. If people do not cooperate towards a solution, which makes the situation better than it currently is, it is out of his hands. He has tried to facilitate a solution, which is amicable to everybody. Mr. Cobuzio asked Mr. Boswell, Was there any part of your alternate design meant to alleviate the onsite existing conditions on Dr. Lesko s property, the standing water which could be piped to the proposed easement you were suggesting? Mr. Boswell stated that there would be a significant benefit to Dr. Lesko s property because he could tie in sump pumps and French drains into this yard system. Mr. Friscia asked, Could the on-site conditions make it so that what is required by our Code is still inadequate in this case? Mr. Boswell stated that we have to ensure that the ground does not create a condition where the water travels straight out until it daylights on the side of the slope and runs down. The variable is the distance of the pits from the slope and the veracity of the soil. This design would be effective for the pool and the patio runoff. Mr. Conte stated that he saw this property when the ranch house was on the property. The Board took a site visit. At that time, we observed that the roof drain was not tied into a seepage pit. The septic was located in the rear. For the new home, the roof drain is connected to the seepage pit. The size of the property is 44, 228 square feet. The area in question is approximately 600 square feet. We are taking the surface water of 600 square feet and we are allotted 3,000 gallons of underground storage. He asked Mr. Boswell what kind of storm would we need to fill these pits? Mr. Boswell stated that there are three seepage pits for the house and four seepage pits for the pool and patio. Mr. Conte thanked Mr. Boswell for attending this meeting.
PAGE 11 Mr. Pullaro asked for a one-minute break. All the Board Members returned from the break. Mr. Conte stated that the meeting will continue. Mr. Spizziri stated that Mr. De Vito will present a video. Dr. Lesko will narrate this video. Dr. Lesko was previously sworn and he is still under oath. Mr. Spizziri marked the video, Rainfall video, as Exhibit O-15 for Identification. Mr. De Vito asked Dr. Lesko to give the Board a sense of what they are going to see. Dr. Lesko stated that this is a video taken by his son on October 29, 2006. It shows the water coming from the swale, which is not shown on the plans. It is from the front yard around to the corner towards a seepage pit and then the water that has accumulated in the middle of his back yard. These are events he never had before the construction of this house. Mr. De Vito asked, Were you able to determine the extent of that rainfall on that day? Dr. Lesko stated that there was approximately one inch of rain reported by the Weather Bureau. He narrated the video. This is the seepage pit showing the water running into it. A lot of this water comes from our house directly by a swale. You can see inside the grate that the seepage pit is fill. That seepage pit is on the Olentangy property. The water is running out of the seepage pit and coming onto his property. The water is coming out of the swale and down the hill. This is the area they are planning to put the pool. There is a swale from the front sidewalk all the way around the house. He showed the back yard where there is ponding and flooding. Mr. De Vito asked, Prior to the construction of the Olentangy house, did you experience this type of problem? Dr. Lesko stated, No, I did not. When he originally came to the Board during the house application, without counsel, he was told that the existing house did not have any gutters on it. That means that 50% of the water from the house is now going towards Olentangy and 50% will be going towards him. The roof of the house ran horizontal to the road. Mr. De Vito stated that you heard the Borough Engineer comment that people sometimes perceive that they have more water. Do you perceive you have more water? Dr. Lesko stated that the fact is during the construction of this house we had two floods of a portion of our house that we never had flooding in before. When he complained to the then Mayor, he told him that they will hook the gutters up to the seepage pits. Mr. Kinz objected to this. This has been heard during direct examination. Dr. Lesko showed the silt fence that was in place during the construction phase. He showed the area of his back yard. Mr. De Vito asked, Did you have this condition over the past ten years?
PAGE 12 Dr. Lesko stated, No. He showed the water problem in his back yard where he did not have a problem before the house was built. He showed the flood area at the edge of the rose garden. There is a fish pond, which he did not intend to have. You can see the depth of the water relative to the boot walking in it. The wood pile is inside the pond. He showed on the right the rose bushes, the fence on one side protecting it, piers on the other side, the wood pile and the pond. Forward you can see the chairs we have and off to the right our barbeque. This has always been a fully utilized dry portion of this land. Mr. De Vito asked, How long have you lived in this house? Dr. Lesko stated that he has lived in this house since 1970. Mr. De Vito asked, In the 36 years that you have lived in this house have you ever had a problem like this before? Dr. Lesko stated, No. You can see that this is the corner and the water is proceeding from the back of the rose garden around the house. It is a small river or ponding. This is not the lowest portion of his property. He showed the edge of his driveway. He showed the eastern portion of his lawn with a pond on it. He had a problem during Hurricane Floyd. He thanked the Board for allowing him to present this video. Mr. De Vito had no further questions for Dr. Lesko. Mr. Spizziri asked Mr. De Vito if he would supply a copy of that video to Mr. Kinz if he requested it. Mr. De Vito had no problem with that. Mr. Conte asked Mr. Boswell to comment on what the Board just saw. Mr. Boswell stated that there are two seepage pits on the easterly side of the Olentangy property. There is one seepage pit on the westerly side of the property. This is the seepage pit that Dr. Lesko is referring to. That is located where the three proposed seepage pits are to be installed. We would be change one seepage pit to four in that location. The volume of water in Dr. Lesko s yard would exceed all four of those seepage pits. This is too much water to have come from the Olentangy property alone. There is a major condition at that location. He cannot say that Dr. Lesko s situation will be solved by these seepage pits after seeing these photographs. Mr. Pullaro was concerned about the water coming from the east side onto Dr. Lesko s property. Mr. Boswell did not know if the water cuts across Dr. Lesko s property from the west side to the east side. Mr. Lauber stated, If we do not give Leonard their pool everything will stay exactly as you have it now. Everything that is on this site has been approved. If we could say to the applicant that the Board can do something about this problem with Dr. Lesko s cooperation that would get rid of the problem he has now. The pipe is the answer to Dr. Lesko s water problems. We need an easement. Mr. Kinz stated that his client is willing to comply with a piping system if it was a condition as long as it is reasonable and as long as he does not have to go on Dr. Lesko s property.
PAGE 13 Mr. De Vito would like to see what this piping system would entail. Mr. Conte suggested that Dr. Lesko give the Board a Letter of Intent to negotiate in good faith. Mr. Lauber stated that somehow the pipe would have to cross the back of the Olentangy property, pick up Dr. Lesko s property and come down along his driveway. That is where the drain is. Mr. De Vito asked the Board to decide on what we have. Mr. Spizziri stated that should the Board grant the variances and within the constraints of the Municipal Land Use Law, which have not been addressed yet, the Board has the right to attach conditions to the grant of the variance application. The Board can make a determination as to the requirement of the construction of a drainage pipe with the consent of Dr. Lesko for the location on his property or the Olentangy property. The Board could request that the Borough Engineer be the final arbitrator of the pipe size, the pipe location and the size of the easement. Mr. De Vito stated that this puts the ball in their court. Mr. Lauber stated that before the Board cannot impose anything until we know that Dr. Lesko will let us go on his property. Mr. De Vito stated, That s right. If you passed a resolution you would make the approval subject to the applicant cutting a deal with Dr. Lesko. Mr. Pullaro had not heard the reason for the Board to grant the variance for steep slopes. We have been discussing the drainage problem. He wanted to hear that before we make a deal to fix the drainage problem. That problem belongs to the applicant that built the house and to the Borough. It goes to the Borough for allowing this drainage to happen. If the construction of that house has caused a drainage problem and Dr. Lesko has certified to that, we have a problem. Our engineer does not agree. Who caused the drainage problem on Dr. Lesko s property? Mr. Conte agreed with Mr. Pullaro, however, he felt that the Board could solve the problem that has been identified. If the Board could solve the problem, we have done our job. We could grant the variance for the pool and this problem continues. What if the only way to solve this problem is for Dr. Lesko to grant an easement and he will not we are back to square one. Mr. Pullaro stated that if he wants the drainage he will have to agree to that. The question is does that tie hand to hand with the pool. The granting of the variance for the pool application is independent of the drainage problem. Mr. Conte agreed with that. Mr. Lauber stated that unless there is some incentive for him to build it and put the money into that pipe there is no obligation on the table right now for him to correct the drainage issue. Mr. Pullaro asked, Whose fault is it for the drainage issue? Mr. Lauber stated that all those developments were built without any drainage. Mr. Pullaro stated that Dr. Lesko testified that he did not have a problem until this house was built.
PAGE 14 Mr. Lauber stated, We have added to it. Mr. De Vito asked Are we closed? Mr. Spizziri asked if both attorneys have rested their case. Both attorneys had rested their case. Mr. Spizziri stated that the applicant s attorney should give his summation and then the objector s attorney can give his summation. The Board was concerned that they could not ask any further questions. Mr. Kinz referred to a Section in the Municipal Land Use Law that answers Mr. Pullaro s question. The Board has the authority to grant variances when due to topographical conditions or other unique physical features affecting the property undue hardship would result to the property owner you have the opportunity to grant the variance under Subsection c.(1) to enable the applicant to avoid that undue hardship or exceptional practical difficulty. Without a slope variance, his client or any future owner of this property will not be able to build a pool. This is a buildable lot. The slope variance was granted for the house. The pool is an accessory structure. In Category 2 for the steep slopes the increase is 14.1%. For Category 3 the permitted disturbance is 35%, we are proposing an additional 6.9% to that. We are also entitled to a variance under Subsection c.(2) which provides that in situations where the zoning ordinance or the public benefit would actually be enhanced by the granting of the variance, the Board has the authority to do it even without regard to whether or not the denial of the variance would constitute undue difficulty to the applicant. Mr. Boswell has testified that the ponding situation to the rear of Dr. Lesko s property will be improved if you grant this application. Mr. Weissman has testified to that as well. We are adding 1,455 square feet of impervious coverage. Four seepage pits for the pool and patio are in excess of what is required to catch the water runoff. There will be a partial remediation of the ponding you saw on Dr. Lesko s property. That is an enhancement to the public benefit. It serves to promote your zoning ordinance in terms of the steep slopes. That is the reason for granting this variance. He asked this be considered under Subsection c.(2) of the Statute. If you deny this variance, you will be prohibiting the construction of a pool on this property. One of the Board Members had stated during the time of the house application, that no pool application has ever been denied. That is one of the reasons that the Board may have wanted us at the time to show a pool. In 2005, we were asked to revise the plan that did not show a pool. You wanted to see the pool because at some point we would come back to the Board for a pool. At that time, we did not have a buyer for the house. We did not make an application for the pool at that time. He referred to Page 26 of the transcript for the February 16, 2005 meeting, which was recorded into the record. He cross-examined Dr. Lesko in November 2006 when he testified. He read that section again. Dr. Lesko had stated that once the creek was sealed he had ponding and flooding on the lower portion of his property every time it rains. He referred to the minutes of the November 1, 2006 meeting, Page 13. Mr. Kinz stated that Dr. Lesko indicated that he now has flooding on his property every time it rains. Did you say that? Dr. Lesko stated that he was talking about the ravine and where the ravine was. That is where the ponding occurred. On the east portion of his property is where the ponding occurred. The culvert is on the east portion of his property. We have just seen a video provided by Dr. Lesko in which he filmed various portions of this property. He had asked Dr. Lesko if that was the lower portion of his property. Dr. Lesko had denied that by saying No. The lower portion of Dr. Lesko s property is in the back yard, which adjoins his client s property. There is a natural ditch in this area. The ponding on Dr. Lesko s property has been there for 20 years. The property has a number of natural springs coming down Olentangy Road. He referred to the transcript for the February 16, 2005 meeting, Page 43. Dr. Lesko
PAGE 15 stated if you go on Olentangy after a rain storm, there are at least five streams running off that mountain between the houses on Olentangy. This is before his client s house was built. They are, most of the time, picked up by the storm drains on Olentangy. That is a huge aquifer coming off that mountain and to add to it is basically a problem. Dr. Lesko has had ponding and flooding problems due to the topography of the land and the filling of the easement. In 2005, Mr. Weissman and the Borough Engineer agreed that when the roof drains were connected to the seepage pits that would improve the runoff. There has been no correspondence to myself or Leonard Developers about a water problem caused by the construction of this house. In 2005, Dr. Lesko had also remarked about the fact that having the house being built here there would be the loss of a flock of wild turkeys who have been nesting in the trees between the property and they will be disturbed. He also complained about the septic system location and the view he will lose. There are other problems that Dr. Lesko has had with this property beyond the drainage. His expert has no credibility once or ever. He misrepresented a conversation he had with Mr. Boswell. Mr. Weissman conducted four or five test borings for the pool and patio application. They found no water within 10 feet of the surface. There is a low enough water table for these seepage pits to work. Exhibit A-9 was a letter sent to Mr. De Vito dated November 8, 2006 regarding a revised plan. He was asked to call Mr. Weissman if he had any additional input as to how we could safeguard this ponding and flooding issue. We wanted to work with him. At no time did Mr. Rotonda call Mr. Weissman. He stated that if the Board wants to make a condition that we pipe it we will comply with that condition. He did not think that it is necessary. Without the cooperation of Dr. Lesko, we could not comply with that condition. Mr. De Vito stated that there is no way those additional seepage pits proposed could take the water that the photos show is on Dr. Lesko s property. Since that house was built he has had this problem. From the photos you saw, Dr. Lesko was standing in water over his feet. You have a variance application, which is a variance on a variance. One of the Board Members stated that the Borough has a slope ordinance, why do we have that slope ordinance. Your attorney will give you an opinion after he states this. There has been no planning testimony provided before you to even address the negative and positive criteria of the zoning ordinance. That is a fatal flaw. He has not justified technically the granting of this application. You cannot approve this application even if you want to. Mr. Friscia had pointed that out. Dr. Lesko was concerned that this pool will add to the existing problem. Your Engineer stated that after seeing the photos presented by Dr. Lesko the amount of water on his property could not be caused by this one house. The four seepage pits will not be able to handle this amount of water. Mr. Kinz stated that the Subsection C variance only involves the negative criteria. There is no prerequisite for a planning expert s testimony. Mr. De Vito stated that you need to present planning testimony and the positive and negative criteria. Mr. Spizziri referred to Section 40:55D-70 of the Municipal Land Use Law. The law grants certain powers to the Planning Board to hear and decide questions of variances. Mr. Kinz has alluded to Subsection c.(1) of the Statute as to the basis upon which the Board can grant variances. Under Subsection c.(2), the Board may grant variances if the deviation from the zoning ordinance requirements and the benefits of the deviation would substantially outweigh any detriment. He agreed with Mr. Kinz that it is not necessarily fatal to an application to have lack of planning testimony to justify the granting of the variance. He disagreed with Mr. Kinz in that in all variance cases the applicant must show that the variance or other relief can be granted without substantial detriment to the public good and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance. That is an absolute must in the granting of any variances. He disagreed with Mr. Kinz that this is not necessary here. His review of case law indicates to him that any applicant must meet those criteria. If
PAGE 16 the Board is of the opinion that this is true, the Board must find specific facts from the applicant s testimony and evidence that the applicant has proven the negative criteria. He has attempted in other resolutions he has prepared for the Board to find and present facts that the Board has indicated justifying the granting of the variance based on the negative and positive criteria being met. He read the negative criteria requirements for the Board. No variance may be granted without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and the zoning ordinance. Testimony from a Planner would make this easier. Mr. Kinz stated that the positive criterion does not need to be shown for this application. Mr. De Vito stated that the negative and positive have not been addressed. A motion to close the Public Hearing for this application was moved by Mr. Cobuzio and seconded by Mrs. Vierheilig. Mr. Friscia was hoping that the applicant and the objector can work this out. If that is not done, we will always have this problem. If we close the Public Hearing we cannot hear back from them and we are done and it is over. We would foreclose the possibility of a settlement. Once we vote on this application and we deny the application, it is done. They cannot reach a deal and come back to us later. Mr. Spizziri agreed with Mr. Friscia s statement. Mr. Friscia suggested that the Board does not close the Public Hearing and that we have our debate in public in case there is a possibility that the parties can get together and talk about it. He moved to table the motion. Mr. Conte asked for a second to table the motion to close the Public Hearing for this application. Mr. Pullaro seconded the motion to table the motion to close the Public Hearing for this application. Mr. Friscia withdrew his motion. Mr. Conte stated that Mr. Friscia would like to engage in a discussion while the Public Hearing is still open. Is that correct? Mr. Friscia stated, Correct Mr. Lauber asked, Do we have the right to talk to the witnesses? Mr. Spizziri stated that the attorneys have rested their case. There cannot be any further testimony presented. Mr. Friscia stated that both of these parties are in a bad position if this is not resolved between them. If the Board denies this application, the applicant cannot build a pool. Mr. Spizziri stated that they can come back with a pool, if there is a substantial showing of change of facts and circumstances. If this Board makes a decision to deny the application and the 45-day appeal
PAGE 17 period goes by and there is no appeal or if there is an appeal and the trail court agrees with the Board that means that these facts cannot be resurrected. Mr. Friscia stated that since Dr. Lesko had a problem this is the time to resolve that problem. Both parties have a lot to gain by working together. Mr. Kinz stated that he did everything he could to get the parties together but got no response at all. Mr. Cobuzio stated that the parties have had three or four months to resolve this problem. They have not done that. He commended Mr. Boswell for trying to help these parties resolve this drainage problem. Dr. Lesko has an opportunity to tie into the Boswell proposition to resolve what is a terrible condition. He felt that the steep slope variances are diminimus. Mr. Lauber stated that it was testified to in one of the closing arguments from the objector that the house caused the increase. He thought that Mr. Boswell s testimony was that the house could not have caused that much of an increase. The subdivisions there were created with only swales. There were no pipes put in internally from the roads. Dr. Lesko has an opportunity to do something with his property. He did not understand why he would not be interested in doing it. Mr. De Vito felt that it was a good idea but he wanted to see a plan. Mayor De Nicola stated that the Board is hearing tonight that the applicant is willing to work out a plan with Dr. Lesko. We hear you say that you are amenable to this. Could we put together a plan right now? Mr. De Vito wanted the applicant to show him the plan for this drainage pipe. Mr. Spizziri stated that the Mayor is saying that given a five or ten minute recess a rough plan could probably be prepared by the assistance of Mr. Boswell, Mr. Kelly and Mr. Weissman that would give a solution to the problem. This would satisfy your request to see something. Mr. De Vito stated that he is not prepared to rest tonight. Mr. Spizziri stated that this has to be done tonight. Mr. De Vito did not want to be pressured into doing something tonight that should have done. He wanted to show it to his engineer to be sure it makes sense. He wanted to know where the easement will go. Mayor De Nicola stated that the Board has time constraints. Mr. Boswell stated that when he spoke with Mr. De Vito about this possible situation he was going to speak to his client to see if he was willing to enter into a discussion about this. A motion to close the Public Hearing for this application was moved by Mr. Cobuzio and seconded by Mr. Friscia.
PAGE 18 ROLL CALL Yes Mr. Cobuzio, Mr. Conte, Mayor De Nicola, Mr. Friscia, Mr. Gostkowski, Mr. Lauber, Mr. Pullaro, Mr. Roberts, Mrs. Vierheilig A motion to deny the variances for this application for the pool was moved by Mr. Pullaro. Mr. Pullaro referred to the 2005 application. There was a variance for slopes for 500 square feet. He is the defender of the Slope Ordinance. We have been giving a lot of variances on this sometimes for very good reasons. That was diminimus. He asked at that time where is the pool. There was no pool so we had no choice but to approve the application and we did. If a pool was there, we would be back to where we are now. If there were no drainage problem, we would be debating if we want to give a variance for 1,500 square feet for the steep slope ordinance. He would say we should not do it. One of the reasons not to do it is just because of what has happened it creates drainage problems. Our engineer says it is 300% by the ordinances by the rationale method it works. We have another engineer that says No it does not work. We do know one thing that Dr. Lesko has water on his property. He testified that he had no water before. He did testify during the house application that he had water in the lower portion. He has more water now than he did before. From the video you could see the seepage pit that was filled up. The seepage pit did not work. The reason why drainage works is that it goes into the ground. When it does not go into the ground, it does not work. This is one of the times that it does not go into the ground it runs out of the ground. That is one of the reasons we said let s protect steep slopes. This was for trees but it was also for drainage. He thought it was important not to give variances when we violate our steep slopes. As Mr. Kinz has said it is diminimus. The Board has to decide if 1,500 square feet is diminimus or not. We gave a steep slope variance for a property on Bakers Pond because the water would go into the pond. If anything happens here, the water will go to Dr. Lesko s property. Mr. Conte stated, We had the opportunity to make all of this go away. Mr. Pullaro agreed. He would be willing to vote Yes on this application if the applicant and Dr. Lesko would go out into the hall and work this thing out. There was a problem created somehow and now we are going to work it out. This will be paid for by the applicant. Mr. Conte stated that there is a problem there. We are aware of that. To not make any negotiation to settle that was beyond him. Mayor De Nicola asked if the Board would be willing to take a 10-minute recess in the hopes that the parties would speak. The Board took a 10-minute recess. After the 10-minute recess, the meeting continued. Mr. Spizziri stated that the Board can either grant or deny the application. The Board must in either case make a determination as to whether or not the applicant has met the negative criteria of the Statute despite Mr. Kinz s position that it is not necessary. The Board has to make findings of fact as to whether the applicant has met that responsibility or has not. One of the facts that the Board would find is as a condition for the grant of the application to met the negative criteria require the applicant to install a hard drainage line which would except whatever drainage is coming off these properties to alleviate that drainage question. That would be a reasonable finding of the negative criteria because it