Board of Zoning Appeals

Page 1 of 14 VILLAGE OF CHAGRIN FALLS BOARD OF ZONING APPEALS January 31, 2023 Members present: Freshman-Johnson, Fricke, Hijar, Holdren, Rockey Also present: Matheny, Jamieson, Cribari The meeting was called to order at 7:30 p.m. by Mr. Fricke. Mr. Fricke gave a brief introduction to the meeting and the general routine of how BZA meetings are run. ELECTION OF CHAIR AND SECRETARY Moved by Mr. Holdren, seconded by Ms. Freshman-Johnson to nominate Mr. Wade Fricke as chair. Carried. Ayes: Freshman-Johnson, Fricke, Hijar, Holdren, Rockey. Nays: none. Moved by Mr. Holdren, seconded by Mr. Rockey to nominate Ms. Rachel Freshman-Johnson as secretary. Carried. Ayes: Freshman-Johnson, Fricke, Hijar, Holdren, Rockey. Nays: none. APPROVAL OF MINUTES Mr. Fricke made note that the recordings for some of the minutes were lost and unable to be recovered. He explained that the village did the best they could to complete the minutes for those meetings and expressed a thank you to Megan Mollohan for the work she is doing to get the minutes complete. Moved by Mr. Rockey, seconded by Mr. Holdren to approve the minutes from 2021. Carried. Ayes: Freshman-Johnson, Fricke, Hijar, Holdren, Rockey. Nays: none. Moved by Ms. Freshman-Johnson, seconded by Mr. Holdren to approve the minutes from 2022 as amended. Carried. Ayes: Freshman-Johnson, Fricke, Hijar, Holdren. Abstains: Rockey. Nays: none. SWEARING OF WITNESSES All were sworn in. JEFFREY SCHEINBERG & EILEEN GALLAGHER – AN ADMINISTRATIVE APPEAL TO THE NOVEMBER 4, 2022, DECISION OF THE CHIEF ADMINISTRATIVE OFFICER IN FINDING THAT THERE ARE NO CODE VIOLATIONS AT THE PROPERTY AT 299 NORTH STREET, PERMANENT PARCEL NO. 931-06-003.  Page 2 of 14 Mr. Jamieson introduced the appeal and explained that back in late June or early July of 2022, a property maintenance complaint was filed with the Building Inspector, Dominic Cribari. Mr. Cribari did a site visit and noted several violations. He issued a violation notice and performed a follow-up inspection on September 20, 2022. After completing his follow-up, Mr. Cribari determined that there were no other violations present. In October of 2022, another complaint was filed about the property at 299 North Street. On October 6, 2022, Mr. Cribari and Mr. Jamieson made a site visit to inspect the property and assess for violations. On November 4, 2022, Mr. Jamieson issued an email opinion stating that there were no other code violations at the property located at 299 North Street. On November 14, 2022, there was an appeal filed on the decision made. Jeffrey Scheinberg, 301 North Street, shared a small packet of examples and reference points for the board to follow along. He explained his opinion of which codes were in violation and noted where Mr. Cribari’s violation notice agreed with his opinion. According to the violation notice, 299 North Street was in violation of code 544.02 removal of weeds by owner or occupant, and code 1150.3(b)(2) light trespass. Mr. Scheinberg shared that in Mr. Cribari’s violation notice, it is noted that the yard of 299 North Street could be a possible source of infestation for rodents. Mr. Scheinberg then shared photos of a 45lb raccoon and an opossum that were trapped during the first year that he was in his home. This is a concern for him as he has two small dogs. Mr. Scheinberg shared that according to Mr. Cribari’s notice, 299 North Street is in violation of code 1150.3(b)(2) because of a rear porch light. He states that the residents have done nothing to correct this violation other than leave the light off. Mr. Scheinberg said that recently the light has been coming back on after 9 p.m. and before 9 a.m., which are hours that lights should not be on. Mr. Scheinberg then walked through the email that was sent by Mr. Jamieson and shared photographic examples of why he thinks Mr. Jamieson was incorrect with his decision. He also shared evidence that the yard at 299 North Street was once landscaped which would mean they have to maintain the landscaping of the yard and keep it in better order. Mr. Scheinberg asked that the board find 299 North Street in violation of code sections 544.02, 1150.3(b)(2), and that section 1125.06(c) is inapplicable. Mr. Rockey asked Mr. Scheinberg where he found the date 1976 that the house was built. Mr. Scheinberg stated that he looked it up in the Cuyahoga County Board of Records. Mr. Rockey shared that he just looked it up and found a date of 1951. Mr. Rockey also shared that Ordinance No. 1125.06 was passed in August of 2019, which would mean the house at 299 North Street pre- dates the Ordinance. Mr. Rockey also addressed some concerns with the evidence presented. Ms. Freshman-Johnson expressed some confusion and asked for clarification. She asked what the citation for code 544.02 was. Mr. Jamieson explained that when the citation was written, it was based off observations that Mr. Cribari made from 301 North Street. When he went back for the site visit and did his follow-up inspection, Mr. Cribari felt that the issues had been addressed. Mr. Scheinberg asked Mr. Cribari if he honestly felt like the issue had been resolved. Mr. Cribari  Page 3 of 14 stated that he did feel like the issues had been resolved because the yard was not overgrown when he walked through the second time. He did not feel that the yard was neglected, it was just a more natural yard. Mr. Scheinberg expressed his disagreement. Mr. Fricke asked Mr. Scheinberg about the state of the neighbor’s front yard. Mr. Scheinberg said that the neighbor’s just recently put money into working on their front yard and he does not have a problem with it because it is landscaped. Mr. Fricke also asked Mr. Scheinberg if he has tried talking to his neighbor about the problems he has. Mr. Scheinberg states that he has tried but his neighbor will not talk to him. Ms. Freshman-Johnson stated that North Street has minimal setbacks which results in being very close to the neighbors. She asked Mr. Scheinberg if that was something he considered when building his home. He stated that it was something he thought about. Ms. Freshman-Johnson also stated that the codes are there are guidelines and cannot cover every possible situation. Sue Corbin, 299 North Street, shared that she strongly believes in maintaining a very natural yard. Last year she found a company that specifically works to create natural spaces. Ms. Corbin had the company come up and look at her yard and help her create a plan. She read the plan that was created which includes maintaining native plants and replacing invasive plants with some that are native to the area to help improve the ecosystem. Ms. Corbin shared that the company will be coming out in the spring to help her get started on the plan that was created. Mr. Fricke shared that in the notice from Mr. Cribari, it is stated that there is yellow caution tape around the trash bins. He asked the status of that tape. Ms. Corbin said that it has been removed and is no longer there. Michael Jason Brown, 299 North Street, shared that when Mr. Scheinberg moved in, they lowered their property line 4-6 inches which created a drop. That is why they put up the caution tape. Mr. Brown said that he told Mr. Scheinberg if there was a problem that he could email him about the problem. Mr. Fricke asked Mr. Brown about the weeds in the side yard, as that is another area that was cited. Mr. Brown said they burned the weeds out. Mr. Fricke also asked about the rear yard, to which Mr. Brown stated they took down a tree. Mr. Scheinberg interjected and stated that the fallen tree was left in the yard. Mr. Fricke asked about the fourth citation which was a wall mounted lighting fixture that is causing light trespass. He asked if it would be possible to shield the light. Ms. Corbin and Mr. Brown both said yes, it would be possible. Ms. Freshman-Johnson asked Mr. Scheinberg if he has put any effort into shielding his property from his neighbor’s. He stated that he has put in small trees but those will take time to grow and provide shielding.  Page 4 of 14 Mr. Fricke stated for the record that the neighbors clearly do not get along, but that is not why this meeting is being held. The point of this appeal is to determine if Mr. Jamieson’s decision is in the right standing or not. Mr. Fricke then turned to Mr. Cribari to hear from him. Mr. Cribari shared that he received Mr. Scheinberg’s letter of concern with the property at 299 North Street. He went out and observed the property from 301 North Street and observed several violations. He then went back to his office to write up the violation notice. The notice was served on July 14th, 2022, and they had 60 days to get the violations corrected. After the 60 days Mr. Cribari made an appointment with Mr. Brown to inform him that he would be on the property to follow up. When he went back, he found that the caution tape was gone and the weeds on the side of the house were cut down. Mr. Fricke asked about the backyard and what was different from the time of the citation to the time of the revisit. Mr. Cribari said that from what he saw, nothing looked like it was overgrown or encroaching, nothing looked like it needed to be brushed up and have grass planted, it looked like a natural backyard. Regarding the light, Mr. Cribari showed Mr. Brown the photos that were taken by the police of the light pollution caused by the light. He informed Mr. Brown that they needed to put up a shield or have the light off and Mr. Brown said they would keep the light off. Mr. Fricke then asked Mr. Jamieson to share his view of the situation and what was experienced by him. Mr. Jamieson shared that he was made aware of the situation when Mr. Scheinberg requested that he come out to the property to reassess the decision that Mr. Cribari had made. Mr. Jamieson went out to the property and took some photos then went back to the office to meet with Mr. Cribari and assess the property and codes along with past practice of how these codes have been enforced. Mr. Fricke asked for elaboration on what “past practice” is. Mr. Jamieson explained that past practice is looking at how the code has been enforced in the past. This code has mainly been enforced on properties that are vacant or abandoned or for yards that go completely untouched. Mr. Jamieson also shared that he reached out to the past CAO to see if this code has ever been enforced for a property that is seen as natural, and there was nothing he could think of. Mr. Fricke asked Mr. Jamieson why he sited a code directed to new development when the property in question is not new development. Mr. Jamieson shared that his intent in sharing that code was to show that when something is a new development the goal is to maintain as much of the natural area as possible, so why would the opposite be for property that already exists? Ms. Hijar asked Mr. Cribari, when he goes back to the property for a follow up, does he asked the property owner what they did to remedy the violation or if it is done based off personal observations. Mr. Cribari shared that he did not specifically ask what was done, but rather observed from the property the changes that had been made. At the time of his visit, he did not feel like anything was overgrown or neglected. Mr. Holdren mentioned that Ms. Corbin is having someone come out in the spring to do work in the yard and asked Mr. Scheinberg if he would want to withdraw his appeal until after that is done or if that is even a possibility. Mr. Fricke directed the question to the Law director. Ms. Matheny said that she would not recommend withdrawing the appeal and Ms. Freshman-Johnson interjected to remind everyone that the appeal is not to determine if there are still violations, rather it is to  Page 5 of 14 determine if Mr. Cribari and Mr. Jamieson have acted correctly. Mr. Scheinberg stated that when the photos he had were taken, it was late June when the problem was at its peak. Mr. Cribari did not go back till two months later when the vegetation had changed. Mr. Scheinberg asked if there was any action taken other than taking down one tree and leaving it there in the yard. Mr. Rockey asked how many landscaping violations the village deals with per year. Mr. Cribari said it is less than 10 per year. Mr. Rockey then asked Mr. Scheinberg what he defines as peak growing season. Mr. Scheinberg said he would say that the peak growing season is the time the photos were taken because you can see that everything is overgrown. Jennifer Evans, 300 North Street, shared that for as long as she can remember, the yard area behind 299 North Street has been a beautiful natural haven. She shared that she cannot remember a time that the yard at that house has ever been landscaped and she thinks that it is wonderful that Sue and Michael have a passion to keep that area natural. Ms. Freshman-Johnson: “Okay, as a reminder the appeal is a little different than a normal variance in that we will not be using the Duncan Factors and our review today will be based on if the code was applied correctly. I’d like to make a motion regarding the appeal regarding parcel No. 931-06-003 and the state of the landscaping and outward appearance of certain factors, on whether or not Dominic Cribari and Rob Jamieson have applied the code in various ways in order to either retain violations and continue follow up or claim that violations have since been corrected. In the violation of code 1340.15 property maintenance, 544.02 more property maintenance, and in the side yard and the trash cans. 544.02 as far as rear yard overgrown, and the final violation of 1150.3(b) for the exterior lighting. The violations were found in the summer of 2022, and later reviewed by Dominic in September of 2022, as corrected and in proper support of the code was found and no further violations existed. These violations were unacceptable by the neighbor, wanting further review by Rob Jamieson who, on his final letter on 11/4, found that there were no further code violations to any of those codes. In reviewing the code and the way that Mr. Jamieson and Mr. Cribari carried on their conduct of review, citing, and clearing of these violations, it is found that there is not an abuse of discretion and use of the code. That the code was applied in a reasonable and organized and analytical manner. That all evidence was supported and timely and proper follow up in a reasonable amount of time was accomplished with proper communication and evaluation and that neither has shown any negligence in applying the code as set forth in this circumstance. And for those reasons, the appeal is denied.” Mr. Fricke: “Okay that is your motion, is there a second to that motion and we will vote aye or nay to it.” Mr. Rockey: “I’ll second that.”  Page 6 of 14 Mr. Fricke: “Alright Andrew, Thank you. Roll please.” Mr. Jamieson: “Rockey.” Mr. Rockey: “Before I vote, I’m just clarifying, if I vote aye that…” Mr. Fricke: “We’ve done away with doing motions in the negative only. Because that’s been confusing. The motion is to deny the appeal, so aye is to deny the appeal.” Mr. Rockey: “Okay, just making sure. Cause I read that and was going to take a minute. So, I’m going to vote aye.” Mr. Jamieson: “Freshman-Johnson.” Ms. Freshman-Johnson: “Aye.” Mr. Jamieson: “Fricke.” Mr. Fricke: “I find these neighbor disputes awful and troubling, and I hope that there’s hope with your landscape plan coming up. At the end of the day the issue is a narrow one and it’s whether Rob and Dominic applied the code appropriately. What I find compelling is your statement of the past practice. Because I look at that code and think every one of us can get cited for having weeds or something that’s more than a foot high. So, I believe the practice that you testified to is significant and I would vote aye for those reasons. And I hope that you guys figure things out.” Mr. Jamieson: “Hijar.” Ms. Hijar: “It’s the abuse of discretion, correct?” Mr. Fricke: “No. its whether they applied the code correctly or incorrectly. They don’t have any discretion. Maybe that’s better coming from you Bridey, but…” Ms. Matheny: “Right, that’s exactly right. Wade said it correctly.” Ms. Hijar: “I would say aye, but I will say that I think our documentation can improve. There’s a compliance date here, I think that there would be a follow up that indicates a compliance date, and preferably what was done to meet compliance, because I think it would have saved a lot of time and perhaps reduced…” Mr. Fricke: “I don’t think so.” Ms. Hijar: “You don’t think? But also, it helps the board in trying to determine these matters.”  Page 7 of 14 Mr. Jamieson: “Duly noted. And Holdren.” Mr. Holdren: “I vote aye as well.” Mr. Fricke: “So what this means is you have 15 days that you can appeal to three members of council can choose to bring this before council and hear it from the start, over again. That’s something I never will predict will work or will not work, but it’s your right under the code. So, nothing is finalized till 15 days have passed. You’ll get notice from Rob whether the appeal is granted or denied. So, you’ll get notice, but you have 15 days within which you can petition council, three members of council can bring it before council. I wish all of you peace somehow, thank you.” JAMES & CATHERINE MITCHELL – REQUEST FOR A VARIANCE TO SECTION 1125.03(F) AREA, YARD, AND HEIGHT REGULATIONS: MAIN BUILDINGS, AND SECTION 1145.02(B) NONCONFORMING BUILDINGS AND STRUCTURES: ADDITIONS, SPECIFICALLY AT 136 WEST SUMMIT STREET, PERMANENT PARCEL NO. 931-09-027. Mr. Jamieson introduced the variance requests and explained the situation. The proposed addition to the house would require two variances, one to section 1125.03(f) area, yard, and height regulations of main buildings which requires a 50-foot minimum front yard setback, the proposed front yard setback would be 35 feet so they would need a variance of 15 feet. The second variance would be to section 1145.02(b) nonconforming building or other structure shall not be altered, added to, or enlarged unless the additions and original building or other structure are made to conform to the yard, coverage and height regulations of the district in which it is located, except a nonconforming dwelling may be altered, modernized or enlarged provided the alterations and enlargements conform to all the yard regulations. Because the existing dwelling is non- conforming, with a front yard setback of 15 feet, that does not meet the requirement of 50 feet. This request went before ABR, and preliminary approval was granted at that time. Rebecca Pantuso, Pantuso Architecture, spoke on behalf of James and Catherine Mitchell. Ms. Pantuso stated that Mr. and Ms. Mitchell wish to add an addition to their house. She thought it important to share that the existing 14.5 feet away from the right of way and the existing is going to be more than 20 feet beyond that. She also noted that Summit Street has houses as close as 9 feet and as far back as 100 feet, which makes being contextual difficult. Ms. Pantuso also pointed out that the street has a 60-foot right of way and the house has a good 20 feet of yard in the front. This addition would include a mudroom, sunroom, and second story bedroom. Melissa Carmichael, 65 Solether Lane, asked about one of the images that was shared to get some clarification. Mr. Holdren: “I would like to make a motion for the property at 136 West Summit Street, to sections 1125.03(f) which is the front yard setback is 50 feet in this district, and they are requesting a 15-foot variance to the 50-foot setback. And, to section 1145.02(b) and that  Page 8 of 14 one states, that since this is a nonconforming structure currently, any additions would have to be conforming, but this addition does not conform, therefore they need a variance to that section also. The property in question would still yield a reasonable return without variance. I do not think the variance is substantial as it has been stated, it is a pretty small addition compared to the current house and the current lot. The addition is not encroaching farther towards the road than the existing house, it is 20 feet back from the road, so it is not substantial. This will not affect the delivery of governmental services. The property owner did not purchase the property with the knowledge of the zoning restrictions and the property owner’s predicament could not be feasibly obviated through any other method without a variance, as Becky stated you can’t really move the addition to the back of the house without altering the house completely. And the spirit and intent of the zoning requirement would be observed, and substantial justice would be done by granting the variance and the variance is not based on circumstances that are self-created. For all these reasons, I make the motion.” Mr. Fricke: “In case anyone was wondering where all those specific reasons came from, there is a supreme court case, Duncan vs. Middlefield I think, where the supreme court of Ohio laid out various factors that are to be considered when looking at an area of variance, so, if you were wondering where we come up with that, how mechanical that was, that is where that comes from. Thank you.” Ms. Freshman-Johnson.: “I second the motion.” Mr. Fricke: “Roll please.” Mr. Jamieson: “Freshman-Johnson.” Ms. Freshman-Johnson: “Aye for the reasons stated.” Mr. Jamieson: “Fricke.” Mr. Fricke: “Aye for all the reasons stated in the motion.” Mr. Jamieson: “Hijar” Ms. Hijar: “Aye.” Mr. Jamieson: "Holdren.” Mr. Holdren: “Aye.” Mr. Jamieson: “Rockey.” Mr. Rockey: “Aye for the reasons stated.”  Page 9 of 14 Mr. Fricke: “Okay, same thing I told the previous group. The council can entertain an appeal of that within 15 days, that’s rather unlikely, I’ve never seen that in my time doing this, where a 5-0 decision was brought before council. Never say never, so basically the rule is hold on to this for 15 days. You will hear from the village administrator if no other action is necessary, and you’ll be good to go.” SHARI HUNTER, TWO FOUNDATION – REQUEST FOR A VARIANCE TO SECTION 1139.02(6)(A) PERMITTED USES: MIXED-USE DEVELOPMENT, SECTION 1139.04(B) YARD SETBACK REGULATIONS; SETBACKS, AND SECTION 1141.05 SCHEDULE OF OFF-STREET PARKING SPACES, SPECIFICALLY FOR THE PROPERTY AT 177 EAST WASHINGTON STREET, PERMANENT PARCEL NO. 932-09-019 & 932-09-020. Mr. Jamieson introduced the variance requests and explained the situation. This is a proposed new business in an existing facility at 177 East Washington Street. This is a limited industrial/residential mixed use over lay zoning district. The proposed business is a mixed use of a café/restaurant and retail area along with an office/training area. The first variance needed would be a variance of 1.8 acres to section 1139.02(6)(a) would be needed as well as a consolidation of the two parcels. The second variance needed would be a 5-foot variance to section 1139.04(b). The third and final variance needed would be to section 1141.05 and would be dependent on what they decide to do with the front dining patio area. If they decide to have the front dining patio area, a variance of eight parking spaces would be needed in order to meet the parking requirements. Mr. Jamieson also shared that if the variances are granted, they would still be required to take the parking plan for this facility before the planning and zoning commission to get their plan approved. Rick Siegfried, RSA Architects, introduced Shari Hunter and the Two Foundation. Ms. Hunter shared how she started the Two Foundation and why it is so important to her. Ms. Freshman-Johnson asked Ms. Hunter if they have already purchased the property at 177 East Washington Street. Ms. Hunter said they have. Mr. Rockey clarified that many of the employees at the Two Foundation do not drive, so employee parking is not a big concern. Ms. Hunter confirmed. Mr. Fricke stated that it is very unusual for a company to move their location such a short distance and asked the reasoning behind that decision. Ms. Hunter stated that there are a couple reasons they came to that decision. The current location they are at is a leased location and they felt that it is not sustainable to lease forever and would prefer to invest their dollars into a place they own. They also wish to expand their business and cannot do that in the current space they have, it is too small. They also believe that this new location will provide better visibility and allow for additional foot traffic they are not currently getting. Mr. Rockey asked about the general demographic of the customers. Ms. Hunter explained that the  Page 10 of 14 café will be serving breakfast and lunch only, no dinner. They currently have many families and moms but hope to attract more of the people who work in downtown Chagrin too. Ms. Freshman-Johnson asked if they are moving the whole business or if they are keeping both locations. Ms. Hunter said they would be moving the whole business. Ms. Freshman-Johnson also asked Ms. Hunter if she knew about the issues with variances and complications that would be involved at the time the property was purchased. Ms. Hunter said yes, she was aware. Ms. Freshman-Johnson stated that according to the traffic study, this business plan should be fine. But, she asked if the traffic study considered the fact that there is new development going in next door. Mr. Jamieson said that was mentioned and he believes it was taken into consideration. Ms. Freshman-Johnson shared that in her personal opinion, the traffic study used an inefficient time to get an accurate assessment of the traffic in that area. Mr. Fricke shared that he has lived in Senlac Hills for over 25 years. There used to be a vacant lot at the end of the street, next to the post office. The owners of the lot wanted to build a large building with a significant number of parking spaces located across the street, on East Washington Street. The residents of Senlac Hills were not happy about that idea, so they took a citizen’s initiative to get the lot rezoned and were successful. The concern was having so many parking spaces in an area that already has the post office and lots of foot traffic from school kids. He also shared that currently, there are problems with visibility in that area when delivery trucks are parked in the road. He stated that he thinks the organization is a wonderful organization but wanted everyone to be aware of the history of traffic problems in that area. Mr. Fricke also asked if they could address any of the mentioned concerns in the presentation. Mr. Siegfried commented on the traffic concern and referenced the traffic study that was done by the engineers. He said that there would be an increase in traffic, but he does not think it will be a substantial change. Mr. Siegfried then walked through the floor plan and the changes they would plan to make. Mr. Siegfried asked when the ordinance saying mixed-use lots need to have three acres of land was passed. Mr. Jamieson said the three-acre rule has always been in place, it was updated in 2019. Mr. Fricke asked what could be built in a limited industrial use zone. Mr. Jamieson replied that you could have research labs, service storage and limited sales, manufacturing of precision products such as cameras and electric equipment, manufacturing of non-metal products like furniture, clothing, and pharmaceuticals. Office use is also acceptable, along with the long list of mixed-use categories. Ms. Freshman-Johnson brought up the point that other people have tried to put in restaurants in that area and have failed due to lack of variance approval. She also mentioned that the big struggle here is that this is a wonderful organization, but the decision is not based on whether or not you like the plan, it is finding acceptable reasons to make exceptions to the codes.  Page 11 of 14 Mr. Siegfried said he is not sure why the three-acre rule applies to this area, if the mixed-use development is done well, in proportion, consistent, is clean, and benefits the community. Mr. Siegfried walked through the floor plan and answered minor questions that arose. Mr. Rockey asked Mr. Siegfried to walk through the proposed parking plan. Mr. Siegfried said the parking plan partly depends on whether or not the head in parking will be allowed. They do have a back-up plan if it is determined that the head in parking is not allowed. Kristin Tull, a partner of the Two Foundation, shared that the reason they purchased the building before getting their plans approved and receiving variances was due to a poor line up of dates and financing difficulties. It was not out of the assumption that everything would be okay with no problems. Dave Mitchell, 210 South Franklin Street, shared that he thinks this organization is fantastic and has a very special set of circumstances due to the fact that most of their employees do not drive. Mr. Fricke asked how many employees the foundation has. Ms. Hunter said it would be around 28 employees in this building. Mr. Fricke also asked how many seats the restaurant area would have. Ms. Hunter said there would be 62 and clarified that not all 28 employees would be at the location at the same time. Nine of the employees are drivers and are not in the building. She also has employees that may be out at the store, so they would not be in the building all the time. Terry Owen, Owner of PRADCO, stated that there has been a lot of discussion of hypothetical situations of things that could be done, but what he wants to commit to is making the property better than it is now. He also stated that he believes there should be a traffic light at the intersection of East Washington Street and Senlac Hills due to the high level of foot traffic and the number of kids that walk by there every day. Mr. Holdren asked Ms. Matheny if the acre variance would stay with the land in the future. Ms. Matheny said that the variance would remain with the property but would be specific to the plan that was submitted. In the future if someone else purchased the property, they would have the variance to use the property as a mixed-use even though it is less than 3 acres because the variance stays with the land. Ms. Hunter shared that she plans to keep this location long term. They have no plans to ever sell or move from this location. Ms. Freshman-Johnson: “Alright, I’d like to make a motion for the submission at 177 East Washington Street containing two parcels. The motion is to approve the variance that has been submitted involving three sections of our code. This is on the presence that they have to consolidate the two parcels into one. These parcels are located in a limited industrial district with a residential mixed-use overlay, which falls this property into a categories of sections 1139.02 the acreage must be 3 acres for mixed use of this kind to be used, which  Page 12 of 14 right now, the properties as consolidated would only be 1.2 so the variance would be a 1.8 acre variance. In addition to that variance, they would need a variance to 1139.04, parking setback. There are parking spots on the parking plan in the back parcel that does not meet the setback, and they would need a 5-foot variance for the parking spots located in the rear. And then the third section they would need a variance to in the code is 1141.05, because they have shown an outdoor patio, it adds to the square footage. Based on the square footage, the parking spaces required on the indoor restaurant and office mixed-use space is 92 spaces but with the additional square footage on the patio, the calculation requires eight additional parking spaces that they do not have on the plan at this time. So, they would need a variance of eight additional parking spaces. With those three variances and we look at the Duncan Factors, whether the property in question will yield a reasonable return or whether they can have a beneficial use, as discussed today, if they do not get the variances described today they will not be able to function as their plan as it is an involved, non- profit organization providing service to the community for training and office, but also actual real life execution of the training in an actual working café and merchant sales shop that would be existing here. So, it is a combined mixed-use for all of those purposes and if they cannot do that, they could not fully impact their plan and their business model. The variance is substantial. It is incredibly material in the sense that it is basically a 50% variance on the acres, the other two variances for the setback and the parking spaces, one of them is less material, the 5-foot space obviously with the way the parking is and with the neighboring properties not being there is maybe less material. But the eight parking spaces is about 10% of the parking spaces required and would be needing a parking plan review anyway but it is considered pretty substantial as far as the size of the variance goes as well as really setting a precedence for the area of a residential mixed-use section of town which is incredibly unique in this section of Washington Street. Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer, based on what we discussed today, it actually does essentially change the character of the neighborhood in the sense that right now there is no working retail, and it is embedded in areas of heavily residential. However, there is clear testimony that the involvement of retail embedded in a residential can actually add a lot of value even though it is changing the character of the neighborhood. Whether the variance would adversely affect the delivery of governmental services, it would not. It would be structured as such to provide access for emergencies and other types of governmental services. The property owner purchased the property knowing the zoning restrictions, so that was known at the time of purchase with hopeful outcome. Whether the property owner’s predicament can be feasibly obviated through some other method other than a variance, we spent a lot of time discussing lots of options of potential ways to work in different solutions and I know the owner will continue to work on all predicaments as well as all possible based on testimonies given here tonight. But, at this time, the parking could probably be dealt with in certain ways but the minimum acre is an impossible obviation to accomplish. The spirit and intent behind the zoning requirement would be observed. I think the spirit and intent of the community is behind this business and supports them based on the testimony given this evening from a variety of residents as well as the board, but the challenge of the board is to acknowledge the zoning requirements should be respected and should be dealt with in  Page 13 of 14 a reasonable manner as we are obliged to do under code. And the variance is not based on circumstances that were self-created, these circumstances exist of only two different zoning areas of Chagrin Falls and this happens to be one of them. And with all those under consideration, the variances are submitted for those reasons, for approval.” Mr. Fricke: “Is there a second to that?” Mr. Rockey: “Second.” Mr. Fricke: “Roll please.” Mr. Jamieson: “Fricke.” Mr. Fricke: “First of all, I can’t imagine a better group of people to present. There are people that I like, that I trust, that I know, that have passion. I support everything you do, I think your organization is phenomenal, but again, my job is not to make judgement on that and I don’t think the community wants me to do that. So I look at this, and it’s not a 50% variance request, its over 100% to go from 1.2 to three acres. And I’m sorry but I just cannot get past that someone said you have to have three acres. And I look at the factors differently, I think that the variance is substantial. I think that the neighborhood would both benefit greatly from your presence and I think that there’s a potential that the neighborhood could be changed significantly for not a good way, in the traffic that I’ve witnessed for 25 years there. I hope it doesn’t put you in the trouble you talked about, but you bought it knowing these were the issues and I just can’t get past the significance of the variance. I’m really sorry. I wish you nothing but the best and maybe my board members will make it so anyway, but I just can’t, in good faith, knowing the history of that area as I mentioned, I can’t vote in favor, so I vote no to the motion, with great reluctance, but I do.” Mr. Jamieson: “Hijar.” Ms. Hijar: “Aye, in favor, for the reasons stated by Rachel.” Mr. Jamieson: “Holdren.” Mr. Holdren: “Yeah this is a tough one, but I actually do vote aye in the favor of the reasons stated. I think substantial justice is done in granting this variance. I think it is an improvement on the property. I mean look at what our code does allow and there are a lot of things that could go in there, carpentry, electric, plumbing, well there actually already is plumbing two doors down, but the manufacturing of a lot of things and I think this concept is a lot better than those. I am still worried about what would happen in 50 years and I do think there is a way we can grant the variance today and figure out a way that the new owners would have to come back to council or the board of zoning for whatever new owner comes in there later, but that doesn’t matter about tonight. But I do vote aye for the reasons stated in the motion.”  Page 14 of 14 Mr. Jamieson: “Rockey.” Mr. Rockey: “Commercial variances are scary. They are. Because they live with the life of the property and we can’t anticipate what’s going on and I got to stick with this three acre. That was in there for a reason, they were thinking about it and because of that, I think this is an extremely substantial variance in that it is going to affect the properties around it. And for that reason, I have to vote no.” Mr. Jamieson: “Freshman-Johnson.” Ms. Freshman-Johnson: “This is hard, I was hoping it wasn’t up to me. I am so struggling with the materiality of it because we talk about that a lot and I wish I could box this in and say this one thing can happen there because I think it’s the right thing. I was against the Knez project for the record, I mean I always was. I don’t want high rise condos, five story condos with rooftop decks in Chagrin Falls. That’s what’s going in, I didn’t have a say in that. It’s going to be really crowded and change is scary, but change is good. (Frustrated groan) Gosh this is tough. I literally wrote check marks in everything we have to go against and it’s a 50/50 so its just a gut call and I’ve been on this board for so long and this is the toughest one I’ve ever had. I am so sorry, this is tough. My code says that this is not the right variance to grant but my heart says it is so. Some times life strikes you to do the right thing and have faith in those that are going to execute and do the right thing, so I’m going to support the appeal and vote aye.” Mr. Fricke: “Okay so the vote passes 3-2. You will have 15 days during which the council can entertain an appeal. Three members of the council would have to support that appeal, in which case the whole matter could be reheard from the start by council. So, basically nothing will happen for 15 days, and you’ll hear from Rob if an appeal has been made or if it’s not. And you have your variance granted you can begin. So, 15 days.” MISCELLANEOUS Mr. Rockey proposed the idea of putting the variances first on the agenda and then the administrative appeals second. The board said they would think about it and make a decision later. ADJOURNMENT The meeting adjourned at 10:37 p.m. ____________________________ Wade Fricke, BZA Chair MNM