Board of Zoning & Building Appeals

City of Hudson, Ohio Meeting Minutes - Final Board of Zoning & Building Appeals David Lehman, Chair John Dohner, Vice Chair Robert Drew Frederick Jahn Louis Wagner Kris McMaster, City Planner Nicholas Sugar, Associate Planner Matthew Vazzana, Assistant City Attorney Thursday, April 26, 2018 7:30 PM Town Hall Special Meeting I. Call to Order Chairman Lehman called to order this special meeting, which is a continuance of the April 19, 2018 meeting, of the Board of Zoning & Building Appeals at 7:30 p.m., in accordance with the Sunshine Laws of the State of Ohio, O.R.C. Section 121.22. II. Roll Call Present: 4 - Mr. Dohner, Mr. Drew, Mr. Lehman and Mr. Wagner Absent: 1 - Mr. Jahn III. Identification, by Chairman, of Kris McMaster, City Planner; Nick Sugar, Associate Planner; and Matthew Vazzana, Assistant City Attorney. Executive Session Mr. Lehman moved that the Board move into executive session to conference with the Board's attorney concerning disputes that are the subject of imminent court action and to obtain legal advice from the Board attorney regarding the Board's legal authority in matters of procedure. Mr. Drew seconded the motion. The motion was approved by the following vote: Aye: 4 - Mr. Dohner, Mr. Drew, Mr. Lehman and Mr. Wagner Executive Session Return On the return of the Board, Chair Lehman explained that this appeal is narrow in scope: Whether or not the city correctly applied the code to its administrative ruling, which was the stop work order and ultimate denial of a permit extension of the original construction. The issue being, did the City correctly City of Hudson, Ohio Page 1 Board of Zoning & Building Appeals Meeting Minutes - Final April 26, 2018 apply the code? Chair Lehman continued with the following statement: Acceptable evidence whether it is testimony or documentary will be deemed relevant to the extent it relates to the administrative ruling and not to opined opinions or the aesthetic characteristics of the subject property. This is relevant for all parties at the lectern this evening. Therefore, if testimony strays into a lack of relevance it will be cut short. Documentary evidence may be received but after all testimony has been delivered, the Board will determine to accept into the record or reject from the record any documentary submissions. Objections to testimony may be raised as appropriate and can be overruled or sustained as well as continuing notice to a recurring objection. The purpose of this is to allow the objector to be heard but also allow the party speaking to have their fair say without distraction. In the end, after the case has been presented by the appellant, cross-examined by a party in interest and redirected by the appellant, then we will have the City presentation in the same format, and thirdly the represented party in interest in the same format. Finally, any qualified public comments. Then the case will go to the Board to render a decision on the simple question, Did the City follow the code with respect to its decision? IV. Swearing in of Staff and Audience Addressing the Board. Mr. Vazzana swore-in staff and all the persons wishing to speak under oath. VI. Public Hearings - New Business There was no new business. VII. Other Business There was no other business. A. BZBA 2018-12 Request is an appeal, pursuant to Section 1212.01, from the final action or decision and interpretation of Section 1203.02(g)(4) of the Land Development Code by the Community Development Director to deny the extension of an expired permit and impose a stop work order. The appellants are John and Patricia Fritz, 102 Aurora Street, Hudson, OH 44236, represented by Daniel K. Wright II, Attorney at Law, 600 Superior Avenue East, Suite 1600, Cleveland, OH 44114. City of Hudson, Ohio Page 2 Board of Zoning & Building Appeals Meeting Minutes - Final April 26, 2018 Attachments: BZBA 2018-12 Staff Report Entry of Appearance Motion to Dismiss Alternate Motion in limine Alternate Motion for Continuance Amended and Restated Motion to Dismiss Transmittal from Attorney Daniel K. Wright, II_041718 Memorandum in Opposition to Motion to Dismiss Memorandum in Opposition to Motion in limine Letter to S. David Worhatch Regarding Hudson BZBA Notice of Entry of Appearance for Corina Guevara_041918 Amended and Restated Notice of Entry of Appearance for Victoria Shepherd_041918 Notice of Guevara Joinder in VSS Motions_041918 BZBA 2018-12 Letter - Swedenborg Mr. Worhatch stated that he is speaking on behalf of his clients Ms. Victoria Shepherd and Ms. Corina Guavaria and requested that he be allowed to delay his questioning of the appellants witness. Mr. Worhatch requested a ruling on the testimony that has been given, that it be deemed not relevant, stating that if it is not relevant there is no need for cross examination. Mr. Worhatch then amended his previous objections. Mr. Dohner moved that Mr. Worhatch’s objections be overruled. Mr. Drew seconded the motion. The motion passed unanimously. The appellant moved for a directed verdict. Mr. Dohner moved to deny the motion for a directed verdict, Mr. Wagner seconded the motion. The motion passed unanimously. Mr Worhatch called Ms. Caitlin Fritz to be cross examined. Ms. Fritz said she did not witness all sixty-nine people who signed the petition and does not know how many live within 300 feet of 102 Aurora Street. Mr. Joshua Fritz - testified to the date the foundation for the garage was poured and the date(s) of inspections by Summit County, the receipt from Medina Supply and the Zoning Certificate were also examined. Mr. John Fritz was shown the zoning certificate for 102 Aurora Street and it was noted that the Certificate is for the project as a whole, which was the main structure and the detached garage, one certificate for the entire project. It was also noted that the certificate says, “shall expire if not commenced and completed within two years”. Mr. Worhatch asked Mr. Fritz if he agreed that the project was not completed within two years. Mr. Worhatch questioned Mr. Fritz regarding Mr. Fritz representing himself as Magnolia LLC without City of Hudson, Ohio Page 3 Board of Zoning & Building Appeals Meeting Minutes - Final April 26, 2018 personally owning the property at 102 Aurora Street and without proper authorization to represent Magnolia LLC. Mr. Dohner made a motion that authorized Chair Lehman to rule on motions on behalf of the BZBA as a whole, Mr. Wagner seconded the motion. The motion passed unanimously. Mr. Bond showed paperwork from the City of Hudson addressed to Magnolia LLC with Mr. Fritz’s name as part of the address. Mr. Bond stated that Mr. Fritz has the right to speak and sign papers on behalf of Magnolia LLC and that there is no confusion as to who the applicant is. Mr. Worhatch objected to Mr. Fritz being recognized as the agent of Magnolia LLC by stating that the law says only interested parties may come before the board and only owners may request a zoning certificate. Since Mr. Fritz does not live at 102 Aurora Street nor has a zoning certificate been issued in his name, he is not an interested party. Mr. Dohner made a motion to overrule the objection to deny Mr. Fritz’s standing. Mr. Drew seconded the motion. The motion passed unanimously. Mr. Greg Hannan, the Community Development Director for the City of Hudson, testified that the request for an extension of the zoning certificate was denied because the zoning certificate was valid for twenty-four months. The request for an extension came after the twenty-four months so the zoning certificated automatically lapsed and became null and void. The request for an extension was not filed in a timely manner, therefore it was denied. Mr. Hannan responded to questioning from Mr. Bond and stated that since no request for an extension was received before the permit lapsed, Mr. Hannan did not have the authority to issue an extension to the certificate. Mr. Worhatch questioned Mr. Hannan regarding the scheduling of meetings and deadlines for filing by the Community Development Department and the purposes of the scheduling. Mr. Worhatch asked Mr. Hannan if a filing fee for the extension request was paid at the time of filing? Mr. Hannan responded that the filing fee was not paid. Mr. Worhatch pointed out that Section 1213.02 (a) (263) states that the fee ‘shall be paid in advance’. The filing fee and LDC changes were discussed. Mr. Worhatch questioned Mr. Hannan and Mrs. McMaster regarding: The date of the zoning certificate and project commencing, the foundation completion, whether Community Development put inaccurate information in public records, who supplied the information for this application and whether the merits of the case were examined when the extension was requested. Mr. Bond questioned Mr. Hannan regarding the circumstances in which an extension would be granted after the date that the certificate has expired. Mr. Hannan responded that an expired certificate cannot be extended. Mr. Bond also asked Mr. Hannan if there was any confusion regarding Mr. Fritz as the representative of the owner of the property? Mr. Hannan responded, no. Mr. Bond objected to Mr. Worhatch’s questions regarding Mr. Fritz’s valid interest in this application. Mr. Dohner made a motion to sustain the objection, Mr. Drew seconded the City of Hudson, Ohio Page 4 Board of Zoning & Building Appeals Meeting Minutes - Final April 26, 2018 motion. Chair Lehman called for a vote. The objection was unanimously sustained. Mr. Worhatch requested a ruling regarding his objections that: 1. Mr. Fritz was not a party with interest in this case. 2. The required fees for the extension were not paid in a timely manner. Mr. Bond responded that these are administrative procedures that have no direct bearing on the filing. The fee was paid by the time of the hearing. Mr. Dohner made a motion to deny the motion stating that, Mr. Fritz was acting for Magnolia and that the fees were paid in advance, and it is reasonable to say they were paid in advance of the hearing. Mr. Drew seconded the motion. The motion was approved by a unanimous vote. Mr. Worhatch stated that his client rests and moved that all the exhibits he used in questioning be admitted and his questioning of Mr. Hannan also be admitted into evidence. However, he objects to all other witnesses and exhibits. Chair Lehman invited any interested party who lives within 300 feet of the subject property and was provided notice, to come forward to speak to the specific topic and said persons may be questioned by any of the parties. Mr. John Campanella of 98 Aurora Street spoke about the responsibility of owning a home in the historic district and that property owners must follow established guidelines to preserve and protect the property. He also stated that this specific site sat idle for weeks and months at a time. Mr. Campanella would like the city rules followed, not this exception given which might lead to problems down the road as builders see the precedence this sets. Mr. Robert Richitelli, as the attorney for Ms. Betty Sorenson who lives at 106 Aurora came before the Board. Mr. Richitelli requested to be removed from the petition submitted by Ms. Fritz because of a conflict of interest. Speaking for Ms. Sorenson, Mr Ritichili is certain that she would like the rules followed and all due process done. Whatever the ruling, follow the laws. Mr. Robert Sweedenborg of 94 Aurora Street stated there are rules to follow in the historic district that protect the integrity of the historic district. He does not want a bad precedence to be set and encouraged the Board to affirm Mr. Hannan's decision. Mr. Bob Morlan of 84 N. Oviatt stated that when he purchased his property he was advised that various Boards would protect the integrity of the historic district. He believe there are rules in place to protect the homeowners and endorse Mr. Hannan's decision. Ms. Laura Labadie, 318 Aurora Street presented a letter to the Board and the attorneys. The Board did not accept letter on advice of counsel and stated that only persons who are within 300 feet of the subject parcel are allowed to present evidence. Mr. Sugar noted that Ms. Labadie owns 4 Ellsworth Court which is 400 feet away. Mr. Nelsen who was not within 300 feet of subject parcel, was not allowed to have the floor. City of Hudson, Ohio Page 5 Board of Zoning & Building Appeals Meeting Minutes - Final April 26, 2018 The Public Portion of the meeting was closed by Chair Lehman. Mr. Worhatch moved to dismiss because of lack of jurisdiction stating that incorrect notice was sent stating the owners to be, Mr. and Mrs. Fritz instead of Magnolia LLC. Mr. Dohner moved to deny the restated motion to dismiss for the reasons already stated, in rejecting two other motions to dismiss. Mr. Dohner stated that Mr. Fritz making application on behalf of Magnolia is sufficient. Mr. Drew seconded the motion. The motion passed unanimously. Mr. Bond stated the Board has the authority to review and take final actions to interpret the code and believes the Community Development Director made several errors: 1. Property owner made the extension request in time but the Community Development determined it was late. 2. The Community Development Director stopped work at the property which caused two errors: a. The property owner was continuing activity during 24-month period, therefore was entitled to an extension of time. b. If the Community Development Director had looked at surrounding facts, that so much money and effort had been invested, it would have been unconstitutional not to allow an extension of time. Mr. Worhatch stated that ultimately the issues are: Did the owner of the property make the application and was this project completed within two years and was it commenced within six months of issuance? It is immaterial how much money has been put into the project, the LDC reads that the permit is null and void. The owner was building without a zoning certificate and the LDC charges the Community Development Director to order a stop work and the owner to get a new zoning certificate. This is a narrow issue: Did the correct person make the application and did the Community Development Director make any error. Mr. Bond asked the Board to look at the language of the exhibits, the applicant and application. Mr. Hanna should have erred in favor of the land owner. Following discussion of which exhibits are to be entered into evidence: Mr. Dohner moved to grant the admission of exhibits 1, 2, 3, 4, 5, 6, 8 and 10 into evidence. Mr. Drew seconded the motion. The motion was approved unanimously. Mr. Worhatch moved for the admission of Magnolia page 40 and 98 of Appellants exhibit 7. Mr. Bond encouraged all of exhibit 7 be entered into evidence. Mr. Drew moved that the Board add into the record of evidence the document labeled Magnolia 40 out of the appellant exhibits which shows construction activity between September 1, 2017 and December 4, 2017 and the concrete dispatch order from Medina Supply from October 2017 . Mr. Wagner seconded the motion. The motion passed with affirmative votes from Mr. Drew, Mr. Wagner, Mr. Lehman and a Nay vote from Mr. Dohner. Mr. Bond made a motion that all of section seven be admitted. Mr. Drew made a motion to deny Mr. Bond’s motion. Mr. Dohner seconded the motion. Mr. Drew’s motion was City of Hudson, Ohio Page 6 Board of Zoning & Building Appeals Meeting Minutes - Final April 26, 2018 approved unanimously. The Board stated that the issue is, did the City act properly in denying the extension and stating that the certificate had lapsed? There is no question that the city did act properly. Section 1203.04 deals with time limits and states that after 24 months certificates are null and void. You cannot ask for an extension for something that is null and void. The Boards hands are tied with this narrow question and a plain reading of the statute, you have 2 years. Mr. Dohner moved that the Board deny the appeal. The testimony before the Board and the documents that have been admitted into evidence, many are tangential to the issue before us. The applicant’s argument stated there is no modifier on when an extension can be applied. That is not the issue. There is a modifier on what can be extended and here the what did not exist. Mr. Hannan’s testimony of 1203.02 of the LDC, says after 24 months the zoning certificate becomes null and void, it ceases to exist, that is not ambiguous. If they would have applied for an extension prior to the operation of that section of the LDC then they may have had a different result. An extension may be requested, but the certificate lapses and becomes null and void after 24 months. It can be reasonably inferred that in order to extend the certificate there must be a certificate in place to extend. Here the certificate lapsed on October 14, 2017, and pursuant to LDC 1203.02 (g) (4), it automatically lapsed and became null and void. Therefore, when the extension was requested on January 11, 2018, there was no longer a certificate to extend. This is a problem of the applicant’s creation, they could have acted prior to October 14, 2017, and they did not. There are other remedies that take it out a of a constitutional problem, and they have been discussed tonight. One remedy, for example, is to apply for a new zoning certificate and if a variance of any portion of the LDC is needed, they can apply to this Board for the variance. There are remedies available to the applicant, for example for issues on costs and other things they wish to get before this Board, there is a time and a place for that, but on the issue of whether Mr. Hannan did his job, the motion is that the Board deny the appeal and uphold the actions of the City in not extending the certificate. Mr. Drew seconded the motion. DECISION Based on the evidence presented to the Board by the appellants, Mr. John and Ms. Patricia Fritz, 102 Aurora Street, Hudson, OH 44236, represented by Daniel K. Wright II, Attorney at Law, 600 Superior Avenue East, Suite 1600, Cleveland, OH 44114. A public hearing was held in the 2nd Floor Meeting Room at Town Hall, 27 East Main Street, Hudson, Ohio, 44236 at 7:30 p.m., on Thursday, April 19, 2018. An appeal, pursuant to Section 1212.01, from the final action or decision and interpretation of Section 1203.02(g)(4) of the Land Development Code by the Community Development Director to deny the extension of an expired permit and impose a stop work order. After reviewing the application, the hearing of evidence under oath, reviewing all documentary submissions of interested parties and by taking into consideration the personal knowledge of the property in question, Mr. Dohner made a motion that the appeal be denied and the actions of The City be upheld and the certificate not be extended. Mr. Drew City of Hudson, Ohio Page 7 Board of Zoning & Building Appeals Meeting Minutes - Final April 26, 2018 seconded the motion. A vote was taken by rollcall and was passed unanimously. The motion was approved by the following vote: Aye: 4 - Mr. Dohner, Mr. Drew, Mr. Lehman and Mr. Wagner VIII. Adjournment Mr. Dohner moved to adjourn the meeting, Mr. Drew seconded the motion. The motion passed unanimously. The meeting was adjourned at 11:31. _______________________________ David W. Lehman, Chair ________________________________ John M. Dohner, Vice Chair ________________________________ Joe Campbell, Executive Assistant Upon approval by the Board of Zoning & Building Appeals, this official written summary of the meeting minutes shall become a permanent record, and the official minutes shall also consist of a permanent audio and video recording, excluding executive sessions, in accordance with Codified Ordinances, Section 252.04, Minutes of Architectural and Historic Board of Review, Board of Zoning and Building Appeals, and Planning Commission. * * * City of Hudson, Ohio Page 8