BOARD OF ZONING APPEALS MINUTES

MARCH 12, 2007

The meeting was called to order by Chairman Taylor at 7:00 p.m.

MEMBERS PRESENT: Alex Kessler, Nevin Taylor, Greg Faulkner, Harry McMannis, Dick Mickley Excused: Barbara Timmons Absent: Kelly Thornton

OTHERS PRESENT: Zoning Inspector McCoy, City Planner DeLong, Clerk Patterson, Martha Moore, Julie Vargo, George Spurling, Bill Hecker, Lorraine Hecker, Bill Vargo, David Creviston, Jason Francis, Richard Teller, Charles Shope

APPROVAL OF MINUTES: There being no additions or corrections, the minutes were approved as distributed.

AGENDA ITEMS:

OLD BUSINESS: None

NEW BUSINESS:

1. Requesting a variance for a fence to be 26’ from the City right of way on Sherwood Avenue as opposed to 35’ minimum front setback required for a fence. Located at 1002 Sherwood Avenue; R-1 zoning district. Filed by Marysville Fence for Todd Hendrickson.

COMMENTS OF ZONING INSPECTOR AND/OR DESIGNEE: Ms. McCoy cited Codified Ordinance 1137.12(i) the minimum front setback in the R-1 zoning district is 35’. Codified Ordinance 1139.21 states fences may not be placed closer to the street than the front of the main building or the front setback line, whichever is closer to the street. The fence is already erected and is located 26’ from the front setback on Sherwood Avenue. The property owner was contacted informing him he had not gotten a fence permit. When the applicant submitted the application she requested the distance be measured because it appeared to be closer to the street than permitted. They have requested a variance to be able to keep the fence where it is currently located. In order for the fence to be in compliance, the fence on Sherwood Avenue would have to be placed back to the side of the house. Mr. Taylor asked what Ms. McCoy meant when she said “place it back to the side of the house parallel to Sherwood.” Ms. McCoy said, “Even with the house.” Mr. Taylor noted according to the diagram, it says 17’. Ms. McCoy said they could go over 9’ and they’ve got 17’ from the side of the house. They could go 7’ over then go clear down to the front of the house. She was uncertain as to how that would look. The ordinance says the fence can be 35’ and they are at 26’. They can bring it in 9’ and be legal. Mr. Taylor pointed out that on another diagram in the packet, it says it’s 18’ from the house to the edge of the fence. He wondered which of those dimensions was correct. Ms. McCoy feels the diagram showing 17’ is correct, because the applicant took an actual measurement after the fact. Mr. Taylor asked the Clerk to make the record show 17’ as being the correct measurement, and that diagram will be referred to for the remainder of the discussion.

COMMENTS OF REQUESTER: Mr. Charley Shope of Marysville Fence Company addressed the Board. His company erected the fence. He confirmed the accurate measurement is 17’ across. At the time of erecting the fence, he assumed that a 26’ setback was permitted on a corner lot. There is no sidewalk. Most fences he puts up are in Mill Valley, and they call for a 26’ setback from the inside edge of the sidewalk to be legal. Being that there is no sidewalk on the Sherwood Avenue side, he measured 41’ from the edge of the curb to the fence. This fence does not obscure anyone’s vision from being in the way of traffic or anything like that. If the owner is forced to move the fence back, it limits his yard on the south side, because his yard is pretty small, other than on the north side.

Mr. Taylor asked for the dimensions of the tree from the edge of the fence line and the back, which would be the south and west. Mr. Shope stated the tree is 3’ away from the fence. Would have to be inside that tree to clear it. To clarify, Mr. Taylor said the tree is 3’ from the current existing fence that’s up there to the edge of the tree, and it would take 9’ to clear the tree, which would put the fence within the correct distance. Mr. Shope said it would actually take 6’ to clear the tree to be inside the tree. The tree sets 3’ inside the fence, so if we had to move the fence, in order to clear the tree, we’d have to be at least 3’ away from it.

COMMENTS OF CITIZENS: Mr. David Creviston addressed the Board. As previously noted, the fence was put up without a permit and that in itself is unusual for the Board to be considering a variance for something that is already established. In going for a request for the variance, there was no site plan referenced. The second page states that a variance shall not be granted on the grounds of convenience or profit unless there is an undue hardship. There is no hardship on this property. Within the Barrhaven subdivision, there are 27 corner lots, of which this is one of them. No other corner lots have fences on them at all, nor has anyone in the past been before this Board requesting a variance. The only convenience would be for the people to have their yard space enclosed, but that’s not a hardship. The profit would be for the fence company because they erected the fence without acting as an agent and failed to get a permit. The applicant used examples of other places that have fences and have gotten a variance, but they used Mill Valley, which is in R-2 zoning district, and it says you have to be in the zoning district where the request is being made. Under special conditions and circumstances, he disagreed with Mr. Shope’s statement, it does create a blocked view for two area residents, the one next door loses their line of site for the use of their yard. He noted that party has lived in that house for over 40 years. The other one is on Hickory Drive, directly across from the house. They lose part of the enjoyment of their property by not being able to see further down Sherwood. Another issue under the request talks about substantial detriments. The main detriment to the subdivision is the lowering of property values. This is an unusual fence; it’s a stockade fence. It blocks in the entire property on three sides and there is no vision through the fence at all. That and the fact it’s been placed farther out in the yard than is permitted, really takes away from the house structure itself. Under the City’s zoning regulations, it does not create or meet the standard for BZA to grant a variance and cited Section 1129.13 (B). There are deed restrictions in this subdivision and in this phase of the subdivision when it was built, it said no fences can be erected without the authorization of the grantor. He feels the variance should be denied and all property owners get together and come to an agreement that if the fence is going to stay up, it should only extend from the back of the house to the property line so it isn’t coming out into the side yard at all. He took photos of the applicant’s house and fence and presented them to the Board.

Mr. Willliam Hecker addressed the Board. He lives next door to the property with the fence. He was shocked to see the fence being erected. He has lived in this neighborhood for 40 years. His view is obstructed. He can no longer see the view to the corner of Hickory and Sherwood. Would like to see the fence brought back to the corner of the house and better yet, would rather have it brought back to the back porch. He can no longer see the flower gardens which were planted by the previous neighbors because the fence now blocks them. Fence also blocks the view of a flower garden that’s in the applicant’s back yard.

Mr. George Spurling moved to Sherwood Avenue in August. He lives across the street from the property in question. He was shocked to see a fence go up. The Barr addition is one of the top places people want to buy. It’s zoned R-1; it’s a very nice area. Allowing this variance to go through would set a precedent for other areas in the Barr addition. It’s not good for Marysville; it’s not good for the area. The fence does not make the house look good anymore. He feels it will devalue Mr. Hecker’s house. Property values in the entire neighborhood will drop if additional fences are allowed. He noted the deed restrictions say 40’ from the line.

Mr. Mickley said he’d like to know the purpose for fencing in the whole back yard. Mr. Todd Hendrickson, property owner, addressed the Board. He has a dog and a small grandchild. He built the fence to keep the dog in the yard and for the safety of his grandchild. He also noticed a pit-bull on his street. If he were to put in a fence and use a shock collar, it would not keep other animals out of his yard. He recently moved to Marysville. He came from an area where fences were permitted. He intends to remodel the house on the inside, but is also going to stain the fence and put up shrubbery and landscape it to make it more appealing, however, he can’t do that in the middle of January. The fence is 6’ high. He contracted with Mr. Shope and let it up to Mr. Shope as far as what was needed for the fence. It was not his intention to make the fence an eyesore.

DISCUSSION BY BZA MEMBERS: Mr. Mickley moved to grant the request for variance for a fence to be 26’ from 35’ minimum required setback according to our rules and regulations, seconded by Mr. Faulkner and the question put, stood:

Mr. Kessler NO Mr. Taylor NO Mr. Faulkner NO Mr. McMannis NO Mr. Mickley NO

Variance denied.

Mr. Taylor noted he had received comments from two other neighbors. One was from Mary Ann Caldwell who commented that she is displeased with the fence. Mr. Taylor made the comments available to the property owner.

2. To hear a request for an appeal of the denial for an off-premise subdivision identification sign and the right for a variance for same sign. A-R zoning district. Filed by M/I Homes for Scott Farms Subdivision, 3 Easton Oval, Suite 540, Columbus, Ohio 43219. To be located on Navin Elementary property at the corner of County Home Road and Scott Farms Blvd.

COMMENTS OF ZONING INSPECTOR AND/OR DESIGNEE: Ms. McCoy stated this is a Request for Appeal for an off-premise subdivision ID sign and the right for a variance for the same sign. This means that the applicant has requested a subdivision ID sign off-premises from where they own property. They would have to put it on a piece of property that they have an easement for from Marysville Schools. Ms. McCoy told them she felt it was not a permitted sign according to the City’s sign ordinance, that’s the same as a billboard, which is permitted. The applicant wanted to request a variance. She informed them that according to a legal opinion she received on December 6, 1999, from then Law Director Mike Grigsby, that said the Board of Zoning Appeals cannot grant a variance for a prohibited or a not-permitted sign. This is why applicant cannot request a variance. Applicant is appealing Ms. McCoy’s decision. Based on that, the Board needs to determine if it meets the “Billboard” sign definition of an off-premise sign. It also needs to be noted that in the A-R zoning district sign ordinance, it does not address Subdivision Identification signs, therefore, the Board needs to also determine whether a Subdivision Identification sign is allowed for the subject property to begin with.

Mr. Mickley said the easement that is shown in the information from Ms. McCoy indicates that the Board of Education gave the easement to the City of Marysville, not to Scott Farms. Ms. McCoy stated the easement was not given to the City. There seemed to be some confusion with the information.

COMMENTS OF REQUESTER: Mr. Jason Francis addressed the confusion. He is an engineer with M/I Homes. He obtained two easements at this corner. They acquired a 60’ strip adjacent to the Navin Elementary School for the purpose of building a public roadway to the Scott Farms Subdivision. The right-of-way along County Home Road itself is so narrow that when they were designing the roadway for construction, it became apparent that the pavement itself would have fallen outside of the intersection of the two right-of-ways, that of County Home Road and the proposed right-of-way. They obtained a small, triangular piece in the name of both the City of Marysville and the Union County Commissioners for purposes of the roadway improvements. Mr. Francis provided the Board with drawings showing an overlapping easement, slightly different, a little larger, as granted by the Marysville City Schools for the purposes of entry features, landscaping, signage, etc. It was part of an overall agreement with the school in exchange for doing a whole host of things. Mr. Francis was informed that he could not request a variance for this. He was not aware it was a legal opinion. He thought he had a right to request a variance and whether it was an appeal or variance, he wanted the opportunity to talk to the Board. This variance is important to the applicant. It was necessary for them to acquire this piece of ground from Mr. Navin for the purposes of building a public access road to Scott Farms. It was part of a much larger overall project and it’s a project that’s going to be continuing for the next several years. The variance is not being requested or the appeal on the grounds of convenience or profit. This isn’t cheap; it’s part of a landscape scheme. He believes it is an amenity to the community, both the local subdivision community as well as the City. It costs the applicant money; it’s not a profit-driven decision, although it is important for the applicant to be able to pull customers in and help identify where the subdivision is at. He also believes it’s in the public’s best interest as well to know where to go. The literal enforcement of the rule for being off-premises sign does create an unnecessary hardship. He quoted some terms in the Code. “The spirit of the zoning ordinance as it related to the definition of off-premises.” He believes this is satisfied. He agrees they are off premises. They acquired a piece of property and they want to put a sign a matter of feet away from that property. Had they known that, they may have had the opportunity to acquire the small piece of ground from the school or possibly a small piece of property from Mr. Navin. He feels that that is exactly why this Board was given the variance, as a mechanism for providing the flexibility to the terms of the Zoning Ordinance and asked for the Board’s consideration.

Mr. Taylor asked Mr. Francis how much footage is needed to put it on the property M/I owns? Mr. Francis stated the ground they acquired is now public right-of-way. He said the long, north/south roadway is probably 500/600 ft. back to the main body of the subdivision along the length of Navin Elementary School.

Mr. McMannis asked why this side and not the other side? Mr. Francis said M/I had a relationship with the elementary school and was doing a lot of work with them and this is where M/I marketing people proposed.

DISCUSSION BY BZA MEMBERS: Mr. Taylor stated he was still not convinced that BZA is allowed to address this issue, after hearing Mr. Grigsby’s legal opinion and in checking with another legal source, he doesn’t feel BZA has any right to hear this. BZA can’t grant something that won’t be upheld later.

Mr. Mickley feels Mr. Francis has the right to appeal, but he doesn’t see anything in this particular zoning district, A-R, that says anything about off-premise signs or billboards. It doesn’t give it; it doesn’t take it away. With it not being there, we don’t have that authority.

Mr. Taylor asked if this sign was going to be a permanent sign. Mr. Francis stated yes.

Ms. McCoy noted that most of the Scott Farms Subdivision is in the R-3 zoning district, which is residential. The A-R zoning district doesn’t even address subdivision ID signs. Ms. McCoy asked if the Board was upholding her decision? Mr. Mickley said he felt that’s what BZA has to do. Everyone agreed. There needs to be a change made to the code. Ms. McCoy suggested Mr. Francis talk to City Planner DeLong regarding code changes.

Mr. Taylor said with no other action or consideration on this issue, this motion is dead for lack of consideration by appropriate committee.

3. Requesting a conditional use to permit a veterinary clinic in the A-R zoning district; to be located at 1057 Milford Avenue 1131 Milford Avenue. Filed by Dr. Julie Vargo, 17380 Waldo Road, Marysville, Ohio

Mr. Taylor noted an address correction which was noted in the newspaper. The Zoning Inspector and the Requestor will speak, and then the request will be tabled.

COMMENTS OF ZONING INSPECTOR AND/OR DESIGNEE: Ms. McCoy noted a couple of problems with this request. One, it was advertised incorrectly. It was advertised with the property owner’s address instead of the proposed address for the clinic. Also, it was discovered this afternoon that not all property owners were contacted because of a misunderstanding on how condominiums are listed on the County website. It showed John Bland as the property owner, when she clicked on the “street name”. Mr. Bland owns the street and the condominium association owns the property, therefore, all the property owners inside that subdivision must be notified. That is why this request will be tabled.

Ms. McCoy cited Ordinance 1137.10(b), a veterinary animal hospital and/or animal clinics are conditional uses in the A-R zoning district.

According to 1129.22, the Board of Zoning Appeals shall review the particular facts and circumstances of each proposed use in the terms of the following standards and shall find adequate evidence showing that such use at the proposed locations do the following including [1129.22(b)] which states that the development will be harmonious with and in accordance with the general objectives, or with any specific objectives of the City’s Comprehensive Plan and/or Zoning Ordinance. It should be noted that according to the 1999 Comprehensive Plan Land Use Map, the subject property is located in an area identified for Single-Family development.

COMMENTS OF REQUESTER: Dr. Julie Vargo addressed the Board. She’s been a veterinarian in Marysville for the past 14 years. This property would work very well as a small animal companion clinic. There will be no outside kennels and no noise. Her clinic is very small and personable. She intends to improve the property by putting on new siding, a new roof and add landscaping. She will address any concerns the neighbors may have. The animals usually come in for a night or two for surgical procedures, then are released the next day. They will be hand-walked. The only changes she’s asking for the property are a small parking lot and a sign to identify the property. Dr. Vargo currently rents at 218 N. Cherry Street.

Mr. Faulkner asked Dr. Vargo why she decided on this location for putting a business in a residential area. Dr. Vargo stated she’s been looking at property for quite a while and felt this property is very useful for her needs. She noted the former OSU Vet Clinic is located across the street from this property, so she thought the proposed property was zoned for a vet clinic, but found out later that it was not. Mr. Faulkner asked if she had looked into buying the former vet clinic. She said yes, but they will not sell that property.

COMMENTS OF CITIZENS: Mr. Mike Powers addressed the Board. It’s all housing in the area besides the former vet clinic, which began when it was in the County. He has $400,000 in his house and does not want to see a business and increased traffic. He noted the driveway is right at a drop on Milford Avenue, coming from the west, going into town. That is a very dangerous place for people to be coming in and out of.

Mr. David Creviston addressed the Board. He referred to the back page of the requester form, an aerial shot of the property. His name is on that photo, but it backs up to Mr. Powers’ and Mr. Bland’s property. He is not concerned about the veterinary clinic itself, but that the City has a Comprehensive Plan which shows this area is for single-family development. He noted the area with Mr. Bland’s name is directly across from the Lakes at Timberview. When Mr. Bland was in front of Planning Commission, he said he was going to come back and ask for rezoning of the A-R in the field for similar type housing in the field on the left-hand side of Milford Avenue, which means a lot more housing in the area. He sees no reason not to follow the Comprehensive Plan at this point in time since this area will be all single-family dwellings. The Board of Zoning Appeals should not totally disregard zoning and development that was passed by the Planning Commission and approved by City Council. It’s critical not to start allowing spot zoning with this type of request for a conditional use.

DISCUSSION BY BZA MEMBERS: Mr. Mickley moved to table this request until the next meeting, April 9, 2007, seconded by Mr. Faulkner; unanimous voice vote was unanimous.

ADJOURNMENT: There being no further business to come before the Board of Zoning Appeals, the meeting adjourned at 7:45 p.m.