CITY OF KENT BOARD OF ZONING APPEALS PUBLIC HEARING & BUSINESS MEETING MEMBERS PRESENT: STAFF PRESENT: Dave Mail Paul Sellman Benjamin Tipton Jona Burton Elizabeth Howard Heather Phile, Development Planner Bridget Susel, Community Development Department Director Eric Fink, Assistant Law Director Sheila Uzl, Transcriptionist I. CALL TO ORDER Ms. Howard called the meeting to order at 7:00 p.m. II. PLEDGE The pledge was recited. III. ROLL CALL Dave Mail, Paul Sellman, Ben Tipton, Jona Burton, and Elizabeth Howard were present. IV. ELECTION OF OFFICERS Dave Mail nominated Elizabeth Howard as Chair of the City of Kent Board of Zoning Appeals. Jona Burton seconded the nomination. Vote: 5 0 Elizabeth Howard nominated Dave Mail as Vice Chair of the City of Kent Board of Zoning Appeals. Paul Sellman seconded the nomination. Vote: 4 0 One Abstention
Page 2 Jona Burton nominated Paul Sellman as Secretary of the City of Kent Board of Zoning Appeals. Benjamin Tipton seconded the nomination. Vote: 5-0 V. PREAMBLE Variance requests will be considered in the order that they appear on the agenda. Each variance applicant or their representative will first explain the request to the Board and will respond to Board questions. The Board will then hear statements from persons supporting the variance, followed by statements from those persons opposing the variance. All persons making statements will do so under oath, and shall state their name and address for the record. Their testimony shall be directed to the Board and not to the audience. If a member of the audience wishes to ask a question of one of the speakers, he or she shall first be recognized by the Chair of the Board and direct the question to the Chair. The Chair will then direct the question to the appropriate witness. This will allow the meeting to be conducted in an orderly manner. If written statements have been provided to the Board, they will be included in the record of this meeting. At the Chair s discretion, they may be read into the record during the meeting. After all testimony has been taken, the Board will discuss and review the request. Generally, the Board of Zoning Appeals will decide to approve or deny each requested variance at the meeting that it hears the testimony. Some decisions may be continued for further review. Mr. Fink read the General standards from Section 1115.09(b)(3) that the Board of Zoning Appeals follows in the granting of any variance. In every instance where the Board grants or recommends a variance, there must be a finding by the Board that: (1) The strict application of the provisions of the Zoning Code would result in practical difficulties or unnecessary hardship inconsistent with the general purpose and intent of the Zoning Ordinance. (2) There are exceptional or extraordinary circumstances or conditions applying to the property involved or to the intended use or development of the property that do not apply generally to other properties or uses within the same zoning district. (3) The granting of such variances will not be of substantial detriment to the public interest or to adjacent property owners or improvements in such districts in which the variance is sought and will not materially impair the purpose of the Zoning Ordinance. Ms. Howard read the following statement that summarizes the Board s authority: The Board of Zoning Appeals operates according to the provisions of the Kent City Zoning Code which provides for the establishment of the Board. Members of the Board, Kent citizens serving without pay, visit sites and hear evidence both pro and con at public
Page 3 meetings before carefully and conscientiously rendering a decision. After a decision has been made, the case is closed for the Board, as there is no provision in the code for the Board to reopen a case. If the petitioner disagrees with the findings of the Board, there are only two proper procedures. One is to resubmit a revision of the request that is more compatible with the code and the second is to institute legal procedures in the Common Pleas Court. VI. ADMINISTRATION OF OATH Mr. Fink instructed members of the audience wishing to be heard on any of the cases presented at this meeting to rise and raise their right hand. Mr. Fink administered the oath, Do you swear or affirm that the testimony that you are about to give this evening is the truth, the whole truth, and nothing but the truth, so help you God? Please say I do. The participants responded, I do. VII. OLD BUSINESS A. BZ15-001 Frank Smith 309 University Drive Section: Request: 1169.13 and 1167.11(a) The applicant is requesting an appeal of the Zoning Inspector s decision to deny a non-conforming use certificate for parking in the front yard of 309 University Drive. Ms. Howard asked the applicant to present the variance request. Oliver Koo, 250 South Chestnut Street, Suite 23, Ravenna, Ohio, stated that he represented Mr. Smith. He said Paul Bauer, Code Enforcement Officer for the City of Kent, denied Mr. Smith a Certificate of Non-conforming Use in a letter dated January 14, 2015. He said it will be proven tonight that there has been parking along Crain Avenue prior to 1970. He said they had aerial pictures, GIS pictures, and witness testimonies to present at the meeting that will demonstrate that. He gave a Power Point presentation that showed the property. He pointed locations on the property where concrete exists. He showed the location of a gravel drive and said Mr. Smith has been cited for alleged nonconforming use, which is the gravel drive. He said there has always been a gravel drive in that location since the 1970s and continues to the present day. The property is located in the R-3 High Density Residential Zoning District. In the past, the property was licensed for ten people, but is currently licensed for eight persons, and has seven persons
Page 4 living there now. He said the non-conforming use should be approved because it has been a non-conforming use since the 1970s and continued through the present day. Three witnesses were at the meeting: Mr. Smith, the current owner and applicant; George Waliga, a former owner of the property and Hugh Ickes, a former neighbor who live at 605 Crain, which is across the street from Mr. Smith s property, and lived there from 1970 to 1975. Mr. Smith, owner of 309 University Drive, Kent, Ohio, stated he has owned the property since 1986. George Waliga stated he was the prior owner of 309 University Drive and he is also friends with a former owner of 309 University Drive, who owned the property in the past. He said he was at the meeting to give testimony on what the condition was at that time. Hugh Ickes stated he used to own property across the street at 605 Crain Avenue. He said the parking has remained the same while he lived there from 1970 to 1975. He said he remembers gravel on the side and in the drive. Mr. Smith stated that the property was a fraternity at one time. Mr. Koo stated he had a list of all the owners of the property. He showed aerial photos to the Board as well as GIS photos from the county. He also submitted an AMATS photo dating from 1970 as an exhibit that he got from the Community Development Department. He said it shows clearly that there are three vehicles parked along Crain Avenue at the 309 University Drive property. Mr. Smith stated he bought the property in 1986. At that time, there was parking in the gravel next to the garage and there was parking on the east side of the garage also. He said he was cited for parking in the front yard. He said railroad ties were installed to prevent vehicles from driving across the property. Mr. Smith identified the existing gravel drive. Mr. Waliga stated there was parking to the left of the garage that was graveled and in front of the garage that was concrete. There was an area to the right of the garage where a couple of cars would park. There was a gravel area that ran parallel to Crain Avenue that had two parking spaces. He said the garage was not used much other than for storage. He said there were seven parking spaces and seven bedrooms at the time he owned the property. He said he drove up University Drive tonight and a lot of the properties have additional parking in the backyard. In his opinion there could not be a front yard on Crain when the front yard is on University Drive.
Page 5 Mr. Koo asked Mr. Waliga the earliest time he was familiar with the property. Mr. Waliga replied he thought about 1982. He said he was familiar with the property inside and outside. Mr. Ickes stated he owned the property on Crain Avenue and the property was well maintained as a student rental and there were no problems with the neighbors or parking. He lived there from 1970-1975. He located his property on the drawing. He said he remembers gravel on the side of the garage and in the drive. He said it was all in pretty good shape and that the garage was used for storage. Mr. Smith stated the property used to be a fraternity house until it was sold. He said a neighbor recalled parking along the side of the house then. Mr. Koo stated that they had a copy of the chain of title from 1956 until the present day and read the names of all the owners. He showed the location of the property in an aerial picture and showed GIS photos from the county. He said they believe the objects shown in the photos are vehicles parked along the Crain Avenue side of the property and they have concluded that there are at least three figures shown, which they believe are three cars. Ms. Howard asked Mr. Koo what the basis of his argument was. Mr. Koo replied that they would like the non-conforming use be grandfathered because the property had the existing gravel drive for parking prior to the zoning code. Ms. Howard asked about the photos from the 1970s. Mr. Koo replied they demonstrate the non-conforming use and there were vehicles parking along the Crain Avenue side. Mr. Smith stated that in 1993, the City of Kent embarked on sidewalk renovation. He said the City wanted to replace the sidewalk and modified the apron. He said the City told him he could concrete the gravel area. He said they were going to put in additional concrete, but was told that he could not and had to turn it back into grass. Five years ago, they began redoing the interior of the house and then they were going to put in more concrete, but were told they could not. He discussed exterior modifications that they want to do to make the exterior look better. He said before they had a chance to apply for a permit for the parking, they were told that all they had to do was to prove that there was parking there in 1970 and they would be eligible to be grandfathered.
Page 6 Mr. Koo referred to the GIS photos which he said showed vehicles parked along the side of the property. Ms. Howard questioned the clarity of the first picture shown and whether it showed parked vehicles. Mr. Koo stated that they believe that there were vehicles parked along Crain Avenue from the 1970s. Ms. Howard asked Mr. Smith why he did not try to address the problem in 1996. Mr. Smith replied that they were told only that the cars were not permitted to park across the sidewalk on the Crain Avenue side. He said that tire tracks could be seen on the front lawn on the University Avenue side. Ms. Howard stated that whenever a property has a frontage on a City thoroughfare, it is considered a front yard. She said it is defined how far away an out building has to be from the building and how far from the property line. She was perplexed why the problem has continued since 1996 and unresolved. Mr. Smith was told there was no problem at that time. Ms. Howard again asked why so many years have gone by with no resolution. She told Mr. Smith that he would have received a letter from the City of Kent acknowledging the decision. She was baffled why it took this long to resolve this problem. She asked Mr. Smith why he neglected to resolve this problem for so many years. Mr. Koo stated that Mr. Smith believed that there had been some resolution. He said Mr. Smith did talk to the City and it was aware of the problem, but chose not to take any further action. Ms. Howard stated that Mr. Smith chose not to address the problem. Mr. Smith stated he was told that he did not have to do anything. Mr. Foo stated that no one raised the issue until the 1990s. Kevin Smith, son of the owner, stated that he has been involved with many of the dealings that his father has had for quite some time. He said they wrote in the lease that renters were not allowed to park across the sidewalk and not allowed to drive across the
Page 7 front yard. He said they had no other problems until this year when they were told there was no parking on the Crain Avenue side, the front yard. Ms. Howard asked Ms. Phile if the violation sent to the owner in June 1996 was for illegal front yard parking on University Drive or Crain Avenue. Ms. Phile replied that there was a picture in the City s files that shows the Crain Avenue side. Ms. Howard stated that a letter that was sent at that time confirmed that there were cars in the front yard even though there were no cars in the photograph. Ms. Phile yes. She said the photograph showed that cars were driving over the curb. Ms. Howard asked Mr. Fink what criteria the Board had to consider when making their decision. Mr. Fink replied that in this case, Mr. Smith has to show a preponderance of evidence that there was a preexisting use of the property and that the parking was legal. He said they also have to show that it was used continuously and not abandoned for more than two years. He said preponderance is defined by the courts as more likely than not likely. Ms. Howard confirmed that this was the only criteria the Board had to consider. Mr. Koo showed the GIS aerials again including ones from the 1970s, 1980s, 1990s, and 2010, that showed cars parked along Crain Avenue. He asked Kevin Smith to discuss the future plans for the property. Kevin Smith stated that they own 605 Crain Avenue also and about four or five years ago there was a bad fire and they ended up rebuilding and felt it was one of the nicest houses in the area now and hoped to improve the property at 309 University Drive as well. He said he wanted to clean up the house and improve the interior and the exterior. He said they are trying to build up the neighborhood. He would like to continue the improvements. He said they planned to beautify the outside after finishing the interior with landscaping, painting, and siding, if financially feasible. He would like to keep the parking so they could rent it. He said the project has been hold on for six months waiting for the City of Kent decision. Mr. Koo reviewed the location of the parking. He said the tenants are informed every semester that they cannot drive across the grass or park on the sidewalk. He said the
Page 8 owners want to add landscaping, so the exterior side of University Drive will be improved. Mr. Mail asked Mr. Smith to locate the seven parking spaces he said are on the property Mr. Smith showed the locations of all the parking spaces. Mr. Mail stated that if he rented to five people he still would make money and the loss of one parking space should not make a great deal of difference. Mr. Smith stated that they wanted renters who drive to work because they are better tenants. They keep the house in better shape and are much better tenants. Mr. Burton asked why the garage was not used for parking. Mr. Smith replied there is not enough room in the garage to park in it and then there would be a car behind it in the driveway. PUBLIC COMMENTS Angela Quatraro, 717 Crain Avenue, Kent, Ohio, stated she was not in favor of having seven people in the house. She said the parking was not built for six cars and she did understand the inconvenience. She said the house was not well taken care of and the parking area is extremely unsightly. She has not seen many improvements on the property. Kasha Legaza, 216 Linden Road, Kent, Ohio, for disclosure, stated that Jona Burton was her husband and she owned the house she would be discussing. She stated she was opposed to the parking. She referred to a letter she had written: I ve owned and occupied the house at 216 Linden, whose driveway is on Crain Avenue, for the past 18 years. Now, I guess I understand that our side yard is our front yard and also like that house, our garage and one car parking spot is on Crain. My house is four doors down from Mr. Smith s ill-kept property. I ve long been dismayed and disappointed that the City, at some point, must have allowed the property owner to pave a good size chunk of the Crain Avenue side of the lot and allowed the owner to pack seven or eight residents into what was originally built as a single family home, necessitating this request. I know that when my son lived at home and we had several vehicles. We played vehicle ballet every single day so that we could continue to follow the zoning laws of the City. I would have just loved to have added another parking space. Mr. Smith s income property already resembles a sappy parking lot with two garage spaces that are not often seen being used, yet the doors are always hanging open and you can generally see all
Page 9 kinds of junk in there. As it stands, I believe this property already is and always has been an eyesore and affects the values of many nearby Crain Avenue properties that are old and well cared for by their owner occupied. I don t believe that permanent residents should continue to be punished in that sense by past mistakes made by lack of oversight by part-time zoning City officials; none of them who have never been as diligent as Mr. Bauer has been during his short time on the job. Frankly, I m very grateful that he is paying attention to that property, because it hurts all of us on Crain. Karen Schafer, 631 Crain Avenue, Kent, Ohio, stated she was opposed to the request. She agreed with the comments the previous speaker had made. She said the grass always needs mowed. She said she has seen eight cars parked on that property. She was not happy with any more parking on the property. BOARD ZONING OF APPEALS DISCUSSION Ms. Howard asked Mr. Fink to reiterate the one criteria that the Board had to consider on the case. Mr. Fink stated that any non-conforming use is illegal. The land owner has to establish by preponderance of the evidence that a previous existing use was legally established, which in the case would be pre-1970, and if it was proven, it would be legal. It has been used continuously, which meant that there was no gaps for more than two years from the time it went legal to the present day. He said that is from Section 1169.13 in the Zoning Code. Mr. Tipton stated he was getting hung up on continued use. He said they saw the GIS photos that showed cars in the area but continued used was not proven. Mr. Burton agreed with Mr. Tipton s comments. He was concerned about the lack of time line. Ms. Howard showed a picture to the Board that she had taken of the property. Mr. Mail said the pictures that were shown did show cars parked on the property in front of the garage or what is now the concrete. Mr. Sellman stated somewhere along the line, it was granted to put in the concrete. Mr. Mail presumed that there was parking in the yard.
Page 10 Ms. Howard stated that the Board had seen cars in front of the garage and not necessarily in the disputed area. The Board members agreed with Ms. Howard s statement. Mr. Burton was not sure the owners had proven their case. Mr. Tipton felt he needed more information to determine whether the owners had proven their case. Mr. Fink replied to a question from Mr. Mail and said that in the past the number of tenants and the number of parking spaces were not tied together like they are now. Mr. Tipton asked if concerns of fire department access was a factor in making decision by the Board. Mr. Fink replied no. Mr. Mail stated he saw the preponderance of evidence. Ms. Howard stated it appeared that the area has been gravel for a while. The house could be rented out to seven people. There were no other comments, so Ms. Howard asked for a motion. The first motion was withdrawn, because it was not worded correctly. Motion: Mr. Mail moved in Case BZ15-001, Frank Smith, owner of 309 University Drive, that the Board of Zoning Appeals grants the applicant s appeal of the Zoning Inspector s decision to deny a non-conforming use certificate for parking in the front yard of 309 University Drive, as defined in Sections 1169.13 and 1167.11(a) in the City of Kent Zoning Code. Mr. Sellman seconded the motion. Vote: The motion passed 3 2. Motion: Mr. Mail moved to take a short recess. Mr. Sellman seconded the motion.
Page 11 Vote: The motion passed 5 0. The meeting reconvened. VIII. NEW BUSINESS B. BZ15-002 Kent City School District 1175 Hudson Road Sections: Requests: 1165.05(a)(2)(A) and 1165.05(a)(2)(c) The applicant is requesting the following: 1) A variance to allow a total of eight signs on the property, where two signs maximum is permitted (Section 1165.05(a)(2)(A)), and 2) A variance to allow a total of 274.1 square feet total, where 50 square feet maximum is permitted (Section 1165.05(a)(2)(C)). Ms. Howard asked the applicant to present the variance requests. Jim Soyers, 1619 Morris Road, Kent, Ohio, stated he was the Director of Business Services for Kent City School. There is a fitness center behind the middle school located at 1175 Hudson that takes care of all the students, including the athletes. The Board of Education passed a resolution to name the center Adam S. Hamilton Fitness Center, who was a 2007 Theodore Roosevelt graduate and was killed in action in Afghanistan in 2011 while serving with the U.S. Army. They would like to identify the building and put letters on the eastern side of the building that faces the track so it would be visible from the stadium and Theodore Roosevelt High School. They want to use 12-inch letters, which is the same size as on the high school. They would also like to put the name on the western side of the building. Mr. Tipton asked if there was other signage on the building. Mr. Soyers replied there is signage on the southern side of the building that is the Rough Riders logo. The other signage is on the middle school. Mr. Fink clarified that the applicant was asking for two additional signs and an increase in the square footage.
Page 12 PUBLIC COMMENTS None BOARD ZONING OF APPEALS DISCUSSION Mr. Mail stated it was the building behind Stanton and it would avoid confusion when parents picked up their kids. He was in favor of granting the variance. Mr. Sellman stated it was a large property and it would be difficult to identify the building from the road. Mr. Burton stated it was a good application. Mr. Tipton had no additional comments. Ms. Howard stated that the practical difficulty is the size of the property and people need to know where they are going and the buildings need to be identified. The exceptional circumstance is that it is a large property. There would be no detriment. There were no additional comments or questions, so Ms. Howard asked for a motion. Motion: Mr. Sellman moved in Case BZ15-002, Kent City School District, 1175 Hudson Drive, that the Board of Zoning Appeals grants the applicant s variance request to allow a total of eight signs on the property, where two signs maximum is permitted, as defined in Section 1165.05(a)(2)(A) in the City of Kent Zoning Code. Mr. Mail seconded the motion. Vote: The motion passed 5 0. Motion: Mr. Sellman moved in Case BZ15-002, Kent City School District, 1175 Hudson Drive, that the Board of Zoning Appeals grants the applicant s variance request to allow a total of 274.1 square feet total of all signs, where 50 square feet maximum is permitted, as defined in Section 1165.05(a)(2)(C) in the City of Kent Zoning Code. Mr. Burton seconded the motion. Vote: The motion passed 5 0.
Page 13 C. BZ15-003 Newbrook / City Architecture 345 South Depeyster Street Sections: Requests: 1146.03(c) and 1146.04(a) The applicant is requesting the following: 1) A variance from Section 1146.03(c) to allow the construction of a new building with 0 percent frontage along Tonkin Court, where the building should occupy a minimum of 70 percent of the street frontage, and 2) A variance from Section 1146.04(a) to allow a new building to have a setback along Tonkin Court and not be built flush with the sidewalk. Ms. Howard asked the applicant to present the variance requests. Guy Totino, 1382 West 9 th, Cleveland, Ohio, stated he was with Newbrook. He said their architect John Wagner will give a brief Power Point presentation of the site plan. John Wagner, 3636 Euclid Avenue, Cleveland, Ohio, stated he was an architect with City Architecture. He gave a Power Point presentation. The site is on the corner of Summit and Depeyster. There were pictures of the landscape plan, ground floor, second floor, and pictures of the exterior. He said there will be a changing elevation and there will be a courtyard. He said they were proposing parking on the ground floor on the Depeyster level. There will be retail amenities space including a fitness center, lounges, and media space on the ground floor, and apartments on the second floor. There will be one, two, and four bedroom units. He discussed the variety of the exterior materials. It is a long building, so there will be a substantial grade change and there will be retaining walls. The variances requested have to do with the Tonkin area. Mr. Sellman asked what kind of tenants they want to lease to. Mr. Totino replied it will be an upscale building, open to everyone. Mr. Mail stated that there are 155 units with 158 parking spaces. He asked if parking spaces will be assigned.
Page 14 Mr. Totino replied the parking places will assigned and numbered and they will lease additional parking spaces from PARTA. Mr. Mail was concerned that there would be a parking shortage because so many spaces are taken up in the deck by private enterprises. He asked how many spaces they would rent from PARTA. Mr. Totino replied about 50 spaces. He said the capacity at the PARTA deck is pretty significant. Ms. Susel stated that the deck is not at capacity. It is hovering around 50 to 60 percent utilization. She said these kinds of arrangements facilitate the use of the deck especially for the overnight parking. She said the City of Kent does have an arrangement to cover a certain percentage if the deck is not running in the black so utilization cuts down on the operating cost. PARTA monitors how the needs are being utilized and they issue permits for different uses. She said permits could be rolled back if utilization was up to 85 percent. Mr. Mail asked if the spaces rented in PARTA would be for 24 hours. Mr. Totino replied yes. Mr. Susel stated that the parking plan does include the parking on site as well as the arrangements made with PARTA. Overnight parking is not allowed on the street. Mr. Tipton asked if Tonkin was ever going to be a through road. Ms. Susel replied it would not be considered a major throughway, because it leads primarily to the police station. People can go through, but public access will be maintained. PUBLIC COMMENTS None BOARD ZONING OF APPEALS DISCUSSION Ms. Howard asked if the building was going to be right up against Tonkin. Mr. Fink replied that the building code requires that the building occupies 70 percent of the frontage, but there will be parking in the front.
Page 15 Mr. Sellman stated the practical difficulty would be there are three front yards. They are reusing the parking lot, which is a benefit. It is a small landlocked lot. The aesthetics of the material will look nice and will tie everything together. Ms. Howard stated that the practical difficulty and unnecessary hardship is that there are three front yards, the elevation drastically changes, and the needed parking will remain. The exceptional circumstances are things on the site that would be difficult to change. There would be no detriment to the public. There were no other comments, so Ms. Howard asked for a motion. Motion: Mr. Burton moved in Case BZ15-003, Newbrook / City Architecture, property located at 345 South Depeyster Street, that the Board of Zoning Appeals grants the applicant s variance request to allow the construction of a new building with 0 percent frontage along Tonkin Court, where the building should occupy a minimum of 70 percent of the frontage, as defined in Section 1146.03(c) in the City of Kent Zoning Code. Mr. Mail seconded the motion. Vote: The motion passed 5 0. Motion: Mr. Burton moved in Case BZ15-003, Newbrook / City Architecture, property located at 345 South Depeyster Street, that the Board of Zoning Appeals grants the applicant s variance request to allow a new building to have a setback along Tonkin Court and not be built flush with the sidewalk, as defined in Section 1146.03(a) in the City of Kent Zoning Code. Mr. Mail seconded the motion. Vote: The motion passed 5 0. IX. MEETING MINUTES November 17, 2014 and December 15, 2014 Motion: Ms. Howard moved to table both sets of minutes until the next meeting.
Page 16 Mr. Mail seconded the motion. Vote: The motion passed 5 0. X. OTHER BUSINESS None XI. ADJOURNMENT Motion: Mr. Mail moved to adjourn. Mr. Sellman seconded the motion. Vote: The motion passed 5 0. Meeting adjourned at 9:34 p.m.