Board of Zoning Appeals & City Planning Commission

Board of Zoning Appeals & City Planning Commission Minutes Tuesday, September 3, 2024 7 P.M. City Hall Council Chambers Members Present: David E. Weiss, Chair Sean P. Malone, Council. John J. Boyle III, Member Joanna Ganning, Member Jason Russell, Member Others Present: Joyce G. Braverman, Director of Planning William M. Gruber, Director of Law Daniel Feinstein, Senior Planner The meeting was called to order by Mr. Malone at 7:00 p.m. * * * * Approval of the August 6, 2024 Meeting Minutes It was moved by Mr. Russell and seconded by Dr. Ganning to approve the minutes. Roll Call: Ayes: Malone, Boyle, Ganning, Russell Nays: None Motion Carried * * * * #2265. KADLIC RESIDENCE – 2799 COURTLAND ROAD: A Public Hearing was held on the request of Michael Beightol, Populus Studio, and Grace Dabernig, Exscape Designs, representing Jeffrey and Sarah Kadlic, 2799 Courtland Boulevard, to the Board of Zoning Appeals for variances to the number and location of parking spaces, the air conditioning and motorized equipment regulations, and pool regulations. The applicant proposes to redesign the landscaping, driveway and patio on this corner lot at Courtland and Shaker Boulevard. Two parallel parking spaces are proposed along the driveway in the Courtland Boulevard front yard. Only one dedicated exterior parking space is allowed and only in the rear yard. The air conditioning condenser units and a generator are proposed to be relocated 12 feet behind the house. Code allows motorized equipment in the rear yard and within 10 feet of the house. A hot tub/spa is proposed in the rear located 4 feet 3 inches off the property line and 10 feet by 6 feet in size. Variances are needed to the required 10-foot landscape buffer and maximum dimension of 8 feet in size. Mr. Feinstein showed pictures of the site. He stated this is a request for a variance to the number and location of parking spaces, the mechanical equipment location, and hot tub/spa location. This request was partially approved in 2022 with the gate and piers, an ornamental water feature approved, and a new HVAC location denied. This is now a request that includes a hot tub/spa in the same location as the former water feature. That spa is 3 feet 4 inches from the rear property line when a 10 foot setback is required. The spa is 10 feet 6 inches in width when a maximum 8 foot dimension is allowed. The mechanical and HVAC equipment is proposed in the rear yard 12 feet from the rear wall of the house when a maximum 10 feet is allowed. Two parking spaces are proposed along the driveway, in the front yard. Only 1 dedicated outdoor space is allowed in the rear yard only. Staff supports the hot tub/spa location and size variance and the HVAC location with conditions: 1) solid fence and sound blanket encloses the existing location or moved to a code-conforming location, plus conditions of coordination of the street tree with the City Forester and a work plan for renovation of the wading pool. Staff suggests denial of the location and number of parking spaces. The Architectural Board of Review approved the design at their meeting this morning. Michael Beightol, Populus Studio, described the overall project design. The 75 foot riparian setback from Doan Brook restricts where any landscaping features could be located. The proposed parking spaces are for delivery vehicles, guests, and family. They will re renovating the patio area. The water feature has been turned into a spa. It is in the ground with a decorative stone feature and landscaping, with a board-on-board fence beyond the landscaping. Itis challenging to accomplish renovations on this property based on the space at the rear of the house. They are proposing an HVAC location enclosed with a fence and sound deadening blanket, then landscaping to shield it from the neighbors. Dr. Ganning asked for a description of the fence. Mr. Malone asked about the existing wading pool that is in the 75 foot riparian setback. Mr. Beightol said the property line fence is a solid wood fence. He expects that the existing wading pool is cracked and just needs some repairs. Ms. Braverman asked how far it is to the property line from the mechanical units. What is the decibel level of the air conditioning unit? Mr. Kadlic explained the location of the HVAC units are just over 10 feet from the property line. He and his wife have spoken to the neighbors. The decibel level will be reduced due to the location being below grade about 5 feet. Compared to today, the units are on the patio across from the neighbor’s office. The neighbors now approve of the proposed location. The existing units are loud for everyone. The new location will be better and quieter for all. Mr. Malone asked about the potential front yard location. Mr. Kadlic said the front yard location is complicated by their windows and is closer to their neighbor. Mr. Russell asked how noisy it will be if all of the units are on. Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5834 Mr. Beightol said he is not sure. These are existing units that currently sit on the patio in several locations. It should be quieter than the existing units all being on the patio. Dr. Ganning said it is a luxury to get the spa away from the house. Is there a cover for the spa? What is a water feature versus a pool? Mrs. Kadlic said they want to have the spa covered and the patio area will be enclosed and gated for safety. Mr. Feinstein said the code defines anything deeper than 18 inches and larger than 200 square feet as a pool. Dr. Ganning said she respects the investment in the house. She supports the spa location with the screening and safety fencing. Ms. Braverman asked the size of the auto court. Mr. Beightol said 38 by 43 feet in size. Mr. Kadlic said snow removal in winter is restricted by the hill and the enlarged driveway will allow room to push snow. When South Park was closed at Warrensville there was more traffic onto Courtland. They have a very public property and are trying to get some privacy in the north and back yards. Mr. Malone asked about deliveries. Couldn’t a delivery truck park in the driveway and pull out from there? Mr. Kadlic said currently they pull all the way to the garage, then hit their house when trying to turn around. Mr. Malone opened the Public Hearing. Mr. Feinstein summarized an email from Mrs. Smith, the neighbor, approving of their requests for the HVAC location. Mr. Boyle said he does not support the parking spaces in the front yard. If there are more guests, then allow them to park on the street. There is no pressing need or hardship for front yard parking. Mr. Russell said he agrees with Mr. Boyle. The gate and front walk design will help with the driveway usage and intrusion to the private zones of the rear yard. The Board has not approved front yard parking spaces like this. It was moved by Mr. Russell and seconded by Mr. Boyle to approve the request for HVAC and hot tub/spa based on the findings of fact and conclusions of law as set forth in the Action Sheet with the following conditions: 1. A solid fence is installed adjacent to the mechanical units with a sound attenuation blanket installed to reduce noise; Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5835  2. The City Forester reviews the new driveway apron location to protect street trees. 3. The applicant provides a scope of work for renovation of the existing water feature adjacent to Doan Brook for administrative review as it is within the riparian setback area. Denied the number and location of the front yard parking spaces Roll Call: Ayes: Malone, Boyle, Ganning, Russell Nays: None Motion Carried * * * * #2266. CHIC N’ BATTER – 20132 CHAGRIN BOULEVARD: A Public Hearing was held on the request of Justin Davies, architect, representing Chic N’ Batter restaurant, 20132 Chagrin Boulevard, to the Board of Zoning Appeals for a variance to the parking regulations in order to establish a restaurant. The applicant proposes to renovate the former bicycle shop space into a sit down and take out restaurant space. A parking variance is required as the combined parking requirements of the proposed restaurant and the other three businesses on the property equals 61 parking spaces. There are only 32 parking spaces in the existing parking lot on this property. Mr. Feinstein showed pictures of the site. He stated this is a request for a parking variance for Chic N’ Batter restaurant. The applicant proposes to open a restaurant in this former bike shop space. A restaurant requires more parking spaces than the previous retail use. The four (4) businesses in the building require 61 parking spaces when 32 spaces exist in the lot. Being a transit-oriented neighborhood in the CM Commercial Mixed Use zoning district allows a 60% reduction for parking. This works out to 37 required parking spaces required on the property, while 32 exist. The restaurant has 20 seats and expects a good amount of pick-up and delivery service. Staff supports the request with the condition of a staff review of the parking situation after one year. Justin Davies, Davies Architecture, said these are new tenants in what was previously a bicycle shop tenant. The new operator is a Shaker Heights resident and their partner has experience at the North Star Café at the Van Aken District. The existing parking spaces are shared by four building tenants, including Saffron Patch, Smokerz Choice, a retail shop, and a beauty salon. Section 1251.02 of the code requires 61 spaces with only 32 spaces in the lot. * * * * Mayor Weiss arrived at the meeting. * * * * Mr. Davies said with the reduction to 37 spaces required due to the transit-oriented neighborhood, it is only a 5 parking space variance. The total 105 spaces on the combined parking lots have been historically shared. The highest demand is for Midnight Owl and Mendel’s BBQ between 5:30 and Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5836 7:00 p.m. Mendel’s is closed on Friday and Saturday. The adjacent retail stores close at 6:00 p.m. They have observed some overflow parking is available at the real estate building next door after 6:00 p.m. There are some spaces available in their lot currently. There is not a time when no spaces are available. He showed a graphic of a 5 minute walk around the Van Aken District and why it is a transit-oriented neighborhood. The restaurant will be health conscious and have soul food options. They anticipate a good deal of delivery and take-out with a high turnover of parking. The owner is working with the city to do storefront improvements. Dr. Ganning asked if there is a plan for any seating on a patio. Mr. Davies said yes, they are working on that. Mr. Feinstein said if a front outdoor patio is proposed then they will have to return for a variance for the fence. Mr. Gruber asked if alcoholic beverages will be served or sold. Mr. Davies said no alcoholic beverages are planned. Mr. Malone said there are other commercial tenants within the building and next door, but have somewhat different hours. Mayor Weiss opened the Public Hearing. Mr. Feinstein said he spoke with the owner of KCRH Realty, next door, and they are not concerned. Mr. Boyle said he likes the idea of a parking review after one year by staff. Mr. Malone asked for a refresh of the parking variances granted nearby. Mr. Feinstein explained the parking variances at Mendel’s and Midnight Owl. He described the one year review of that parking. The lot at Mendel’s and Midnight Owl is full Wednesday and Thursday evenings. Overflow parking goes to Wendy’s and then to the next door lot to the west of them. Mendel’s being closed Friday and Saturday works out well. It was moved by Dr. Ganning and seconded by Mr. Russell to approve the request based on the findings of fact and conclusions of law as set forth in the Action Sheet with the condition that a staff review of the parking situation to consider additional parking solutions after one year of operation. Roll Call: Ayes: Weiss, Malone, Boyle, Ganning, Russell Nays: None Motion Carried * * * * Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5837 #2264. LUDLOW SCHOOL – 14201 SOUTHINGTON ROAD: A Public Hearing was held on the request of Kevin Dreyfuss-Wells, to the Board of Zoning Appeals for an appeal to the interpretation of the Zoning Code by the Zoning Administrator. The applicant appeals the Zoning Administrator’s decision that the proposed use of the property at 14201 Southington Road as a pre-kindergarten use is classified as a primary school. The Shaker Heights School District proposes a district-wide pre-kindergarten use in the Ludlow School building. The Zoning Administrator has determined a pre-kindergarten use is classified as a primary school use. A primary school is a permitted use in the I-Institutional zoning district. The applicant appeals that use determination and maintains that the pre-kindergarten use should be classified a child day care use. A child day care use is a conditional use in the I-Institutional zoning district which would require a conditional use permit and further review by the City Planning Commission and Council. Mr. Feinstein showed pictures of the site. He stated this is a request to appeal the decision of the Zoning Administrator that the proposed use of Ludlow School of a pre-Kindergarten is a primary school. The applicant seeks to define the pre-K use as a child day care use. The Shaker Heights City School District proposes a district-wide pre-K in Ludlow School for 3 to 5 year olds. A primary school is a permitted use in the I Institutional zoning district. An appeal to the Zoning Administrator’s use designation is heard by the Board of Zoning Appeals per Section 1213.02 A of the Zoning Ordinances. The process will include swearing in of witnesses, presentation from the appellant, presentation from the Shaker Heights school district as impacted party, presentation for the City’s Law Director and questions from the Board as well as a Public Hearing. Mr. Gruber swore in all persons interested in speaking during the appeal. Mr. Dreyfuss-Wells, 3021 Ludlow Road, said he lives within 200 feet of the Ludlow school property. He has 30 years of experience as an architect. He has reviewed a substantial amount of zoning and served on review Boards in the past. The population of children proposed for the Ludlow site is not for a primary school. The children will be younger and are not similar to a school as defined by the zoning code. This appeal is not intended to obstruct or delay the project. It is an appeal of the use category of the prekindergarten use. The permitted use as a school as defined by the zoning administrator allows the review of the project without a more thorough review as would be required of a child daycare use. A primary school is different and is defined as Kindergarten through 12th grade. Child daycare is a listed conditional use. There is no description of Pre-K in the Zoning Ordinances. The use should be no different depending on the ownership. There is no mention of curriculum in the zoning code. Many pre-school programs also provide academic instruction. This use is described as pre-K for three to five year olds, not Kindergarten. He showed language that described permitted and conditional uses. Pre-school is not listed as a permitted use. Child daycare is only allowed in the Institutional zoning district as a conditional use. The zoning code requires conditional use permit standards for a child daycare use. There is no distinction between public and private institutions. This appeal is being filed partially because the Board of Zoning Appeals scope of review of this project is limited for a permitted school use while a child daycare use would require conditional use permit review. He showed the different standards within a conditional use permit review and highlighted traffic issues that have been questioned by the Board about this property. Mr. Malone asked how Sussex School was reviewed. Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5838 Mr. Feinstein said the various uses in the former Sussex school building were reviewed via special use permit as child day care uses in 1994 before the current zoning code was enacted. Mr. Malone said this Board intends to look at the broader renovation and work proposed at Ludlow School. It would be nice to have a broader review authority. Pre-schools have a range of academic programs. Pre-K is different than child daycare. There is some ambiguity in the code as to the differences between those uses. Mr. Dreyfuss-Wells said the zoning code is more about the impact of the use of child daycare not whether it offers certain academics. Mayor Weiss asks if the school districts proposed prekindergarten use is appropriate for this site. Mr. Dreyfuss-Wells said yes, this is an appropriate use. He believes that it could be made more appropriate through a conditional use permit review. Mr. Riley, representing the Shaker Heights School District (SHSD), said there are two types of daycare in the zoning code. One is child and another is adult which applies to custodial care and daycare. Daycare is not considered academic. A primary school is academic and as is in the definition. There is no difference between a pre-K and a Kindergarten academically, especially in a public school district setting. The description of spaces in the design are the same. The same outdoor equipment and licensure of the teachers is required. The same State guidelines, requirements and regulations are under Title 33 of the Ohio Revised Code (ORC). Child daycare is a different section of the ORC. Mr. Dreyfuss-Wells said there are similarities of pre-K and grades K-5. The Board has already reviewed how the uses are different as special drop-off provisions are needed. Mr. Riley said there is a different drop off procedure and playground equipment. Mr. Dreyfuss-Wells said State license requires enclosure for pre-school playgrounds. There will only be pre-K at the Ludlow property. Mr. Riley said the School District will follow state law. Mr. Dreyfuss-Wells said some conditional use permit requirements and standards include topics of concern to this Board. If this appeal is denied, will the school district apply any of those standards to further review by the Board of Zoning Appeals. Jeff Grosse, SHSD, said Onaway has the only pre-school program currently in the district. It is located in a primary school and has a fenced-in playground. The state is looking at including universal pre-K for all public schooling. This proposal is one step ahead of the state. Mr. Dreyfuss-Wells asked if there will be any other schools with pre-K students? Mr. Grosse said if universal pre-K is required, they may need additional space in the future. Mayor Weiss asked if all pre-K schools operated by a public school district are licensed. Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5839 Mr. Grosse said yes, all teachers and aides are licensed the same as other grades. Mr. Gruber said 50 years ago there may not have been so many pre-schools. Are there other examples of universal prekindergarten in the state? Mr. Riley said there are other districts that have expanded pre-K. This district is responding to that need and the regulations that apply with the renovation of Ludlow School. Mr. Gruber said the entire property use includes use by older children. A play area for upper age elementary children is being studied as part of the property renovation. Mr. Grosse said yes, the ballfields are used by the city’s recreation department and the playground is used by the neighborhood. Dr. Ganning said daycare should not be called babysitting. It is described as pre-K. It does not seem defensible to require conditional use permits for all other preK programs and not this one. We should not treat the applicant different than others. It is pre-school per its name. The zoning code defines a school as K-12. Mr. Boyle asked what makes this facility unique. Does the Ohio Department Board of Education treat a pre-school operated by public schools different? Does the Department of Education regulate it differently? Mr. Riley said the Department of Education has jurisdiction over all of the school districts education programming including the pre-K program. The license requirement is different for preK teachers for school districts versus private child daycare that includes preK age children. Mr. Grosse said the biggest difference is that all teachers are certified for public school district PreK. Mr. Malone asked what would be the effect of this appeal being approved. Mr. Gruber said the school district would need to apply for a conditional use permit. That is not that different from other applications they have applied for and this Board has reviewed. Mr. Riley said the district plans to open the Ludlow school building in August of 2025. If conditional use permit review is required, then they may not have time to open by 2025. Mr. Russell said he has just looked at a list of all entities that can be reviewed by the Department of Education. The Department of Education says that Kindergarten is licensed differently than another child daycare in a public school setting. Mr. Gruber said this is an appeal and is based on the appellant needing to make a case. Any pre- school or day care at another public or private school would be nothing more than an accessory use. The reason a day care would need a conditional use permit is because it is a separate primary use. A pre-school is a type of school that includes academic education that is regulated differently with different requirements. The State is moving toward universal PreK in public schools. The City’s position is that the Ludlow School proposed use is a school not a child daycare. The use was Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5840 evaluated using the definition and the institutional zoning district. The use is primarily engaged in academic education as in the definition. A public institution operating a PreK program is different than other private child daycares. The use proposed in Ludlow school is clearly pre-school, owned and operated as a public school district. ORC Title 33 treats child daycare differently at the state level. The child daycare definition in the code includes only differences in the number of children and ages. The use should not be defined by the impact. Define the use first then look at impacts. Mr. Gruber asked Mr. Feinstein when and how do you evaluate a use generally. Mr. Feinstein said the use is evaluated using the definition in the zoning code, the zoning district and Section 1213.11 Administrative Interpretations. Mr. Gruber asked when Mr. Feinstein was first aware of the District’s intention to use Ludlow School for a pre-school. Mr. Feinstein said he was made aware more than a year ago through the school district’s schools facility plan. Mr. Gruber asked when the District first came to Mr. Feinstein with their plans. Mr. Feinstein said preliminary discussions and layout plans were shown in March 2024. Mr. Gruber asked Mr. Feinstein how he considered the proposed use. Mr. Feinstein said he met with the Planning Director and Law Department and discussed the Use. It met the definition of school and it was not considered a day care. He said he is familiar with day care uses and believes this is different. Mr. Gruber asked Mr. Feinstein is the use of a building and property something you automatically consider when a project comes to him, for whatever reason. Mr. Feinstein replied that the use is always considered. Mr. Dreyfuss-Wells asked if there are other preschools in the city that were required to have a conditional use permit review? Would a private preschool of the same size as be proposed at Ludlow be a permitted school use? Mr. Feinstein said yes, there are other daycare uses that also include preschools and early learning that have required conditional use permit review. A private preschool might be a permitted use everything else equal. And each proposed use would need to be evaluated separately. Mr. Dreyfuss- Wells asked if any interior layout changes be required of the Ludlow school use if a conditional use permit review were required? Is this appeal is approved, is it feasible for the school district to apply for conditional use permit review at the next City Planning Commission meeting? Mr. Feinstein said no interior changes should be required by a conditional use permit review. And it would be feasible for the school district to apply to the next City Planning Commission meeting for conditional use permit review as long as they submitted the required information. Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5841 Mayor Weiss opened the Public Hearing. No comments were received in relation to this request. Mr. Gruber said in an appeal, the appellant has the burden. The Zoning Administrator applied matter of fact reasoning to determine the use when not specifically listed in the zoning district. The Institution is the one operating this use. It is not regulated the same as a child daycare by the state. Additional oversight is not a reason to consider this appeal. Mr. Boyle said the ORC clearly regulates pre-K uses operated by a public school district differently than a child daycare. The proposed use is closer to a school definition than a daycare. He would like the additional review of the renovations but that is not why the appeal should be granted. Mr. Russell said the planner in him wants to review the proposal with as much authority as possible to ensure the best project design. He agrees the proposed use is similar to a school as defined by the zoning code. Dr. Ganning said the ORC is not the zoning code. The proposed land use is not K-12 and may be similar to a daycare with pre-K. It is not an accessory use. There is not a definition for it. Pre-K is offered in other settings and requires a conditional use permit review. She supports the appeal. Mr. Malone said he is trying not to focus on impacts. The use could fit into either category. He has concern with practical impacts. He is not sure burden has been proven. Mayor Weiss said he agrees with Mr. Boyle. The use is caught between two ambiguous terms. Schools are different than child daycares. This proposed use is pre-K for only for 3 to 5 year old children. No other services like at a child daycare are offered and it is being operated by the public school district. The state requirement of different licenses is a factor as well. All of this adds up to him not supporting the appeal. Mr. Malone said this is late to raise the question. He does not want to hold this up. The school district should be clear that the Board does want to address parking and green spaces in their further review of variances at the Ludlow site. Ms. Braverman said a limited update of the zoning code for Lee Road may allow other zoning code changes. It was moved by Mr. Russell and seconded by Mr. Boyle to deny the request based on the findings of fact and conclusions of law as set forth in the Action Sheet. Roll Call: Ayes: Weiss, Malone, Boyle, Russell Nays: Ganning Motion Carried * * * * Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5842 There being no further business, the meeting was adjourned at 10:00 p.m. The next meeting will be October 1, 2024. _________________________________ _________________________________ David E. Weiss, Chair Daniel Feinstein, Secretary Board of Zoning Appeals Board of Zoning Appeals City Planning Commission City Planning Commission Board of Zoning Appeals & City Planning Commission 09/03/2024 Minutes Page 5843