VILLAGE OF EVENDALE
ZONING BOARD OF APPEALS MEETING MINTUES
JULY 12, 2005
EVENDALE MUNICIPAL BUILDING
Pursuant to notice, the Village of Evendale Zoning Board of Appeals met at 10500 Reading Road, Evendale, Ohio on July 12, 2005 commencing at 5:00 p.m. The Following Board members were present in person:
Al Schutte Chair
Tom Lippert Member
Lynn McCarthy Member
Mike Reed Member
D. Lynn Watts Member
The announced that there were three issues before the Board----one related to zoning, one related to property management and one administrative.
In attendance at this portion of the meeting were the following guests:
Mrs. Dorothy J. Dover
Joli Lynn Gross, Esq., Director of Legal Affairs for United Rentals
Frank Goie, Construction Manager for United Rentals
Dan Neyer, Property Owner
Bob Bogardus, District Manager for United Rentals
Thomas W. Breidenstein, Esq., Counsel for United Rentals
Thomas M. McCormick, Realtor (Colliers international)
Mr. Breidenstein opened the presentation by providing the Board with an overview of the situation.
Joli Gross then provided background on the applicant, indicating that it is a $3 Billion a year business with approximately 730 locations, including several in Ohio, Kentucky and Indiana. The business typically consists of about 70% equipment rentals, 20 % sales of contractor supplies located inside the facility and 10% sales of equipment. She also indicated that the applicant views itself as a good corporate citizen and is active in the communities in which it does business. Moreover, the applicant’s business is complimentary in style and type to neighboring businesses such as Contractors Supply and Riverfront Steel. Ms. Gross also indicated that while the applicant’s typical lease was in the 10 – 15 year range, the lease for the subject property was only going to be a three to five year lease because the
owner had other plans for the property. Mr. Neyer indicated that he was unwilling to enter into a longer term lease with the applicant because he planned, longer term, to build two 40,000 square foot buildings of the same type which he had built on the adjacent property. Leasing the subject property to the applicant would allow him to cover his ownership expensed in the interim.
Mr. Bogardus indicated that initially the applicant would employ approximately 10 people and that the number of employees should grow to the 20 – 28 range as the business matured.
It was noted that property at issue had been the subject of another application from a different potential user. It was further noted that Mr. Neyer had not been the owner of the subject property at the time and had strenuously opposed the granting of a variance at that time, being instrumental in defeat of the application for a business that would have created a large number of jobs locally as well as having many of the same physical characteristics of the current applicant’s business. It seemed inconsistent that Mr. Neyer, prior to owning the subject property, would be bothered by the presence of this business while now, after acquiring the property, was in favor of what appeared to be a use similar to that which had been previously proposed. Mr. Neyer explained that there were substantial differences between the
business operations of the two potential users---that the earlier proposed user would have expanded the existing building, paved a substantial portion of the existing grass area and created much more traffic in an already dangerous area. The current applicant would improve the existing facility both cosmetically and mechanically, use only the existing paved areas for other storage of merchandise and would create much less traffic.
Mr. Bogardus indicated that the applicant was willing to install either a solid wood screening fence or a decorative wrought iron fence along the Glendale-Milford Road side of the property as well as to install fencing of up to eight feet in height around the building and paved areas.
The following discussion by the members of the Board, the Chair moved that the application for the variance be denied because the proposed use was not a permitted use. There being no second to the motion the motion died.
Upon motion made by D. Lynn Watts and seconded by Lynn McCarthy, it was
RESOLVED, that the application for variance be granted, subject to the following conditions:
1. The variance shall apply to the subject property only, allowing United Rentals to use and occupy the subject premises for the sales, rentals, storage, including without limitation, outside storage on the existing paved lot, warehousing, maintenance, repair and construction, household and other machinery, tools and equipment and the wholesale or retail sale of industrial or contractor supplies, including, without limitation, concrete and merchandise of all kinds and for offices and other related uses in connection with United Rental’s equipment rental business; and
2. The variance is granted for a term of only five (5) years and is not transferable or extendable except for reappearance before the Board of Zoning Appeals for review and approval of an application for renewal.
This motion was approved by a vote of 4 – 1, with the Chair being opposed.
The next order of business was the appeal by Mrs. Dorothy J. Dover from a decision under Chapter 1468 by the Evendale Building Commissioner, Donald R. Mercer, affecting 3040 Inwood. In addition to the members of the Zoning Board of Appeals, the following guests were present:
1. Lois Scalf 3054 Inwood
2. Diane Bottom 3045 Inwood
3. Eileen O’Donnell Lipps 3055 Inwood
4. Gene Mueller 3055 Inwood
5. Donald R. Mercer Building Commissioner
The Chair invited Mrs. Dover to make an opening statement. Mrs. Dover stated that the subject property was dilapidated and that due to family illness, she wanted an extension of time, for a period of six (6) months to a year, to address the situation. She indicated that she had been in touch with legal counsel and that she was expecting to commence litigation shortly. The Chairman read aloud for the benefit of all present, the applicable sections of 1468.09, those being section a, d, e and f.
All guests were sworn in and Mrs. Dover swore that the statements made in her opening statement were also the whole truth. Each guest was given an opportunity to testify. Mrs. Scalf offered no comments initially although later commented that sometimes the Village did not always do things the right way. She related a story of a problem with a sewer running through her property and the Village’s responses to the situation. Mrs. Bottom testified that the physical condition of the subject property was as described by the Building Commissioner. Eileen O’Donnell Lipps testified that the subject property was as described by the Building Commissioner. Mr. Mueller testified that the porch was partially disintegrated. Mr. Mercer testified that the contents of his report were accurate, that the subject
property was not to the best of his knowledge, non-conforming and that the existing conditions as noted in the report were violation of the Village’s ordinances and that despite Mrs. Dover’s assertions to the contrary, he would entertain any request for a building permit she or anyone else filed. Mrs. Dover’s acknowledged that she had not applied for a building permit and that she has never received any type of notice or information from the Village indicating that her property was non-conforming.”
Mrs. Dover opined that the division of the land of which the subject property was a part was illegal, this rendering her property “non-conforming” which she indicated made it impossible for her to do anything with She also wanted to know about a nearby and adjacent green belt which she indicated, should exist. Mrs. Dover stated that the Village had for many years, covered up ongoing illegal acts and that the Village does not legally exist as the supposed result of the failure to properly post various notices, as required. Mrs. Dover indicated that she has a number of grievances with the Village and it was noted by the Board of Zoning Appeals that she had lost an earlier suit against the Village at both the Common Pleas and Appeals Court levels.
Several members of the Board indicated that if the Village had treated Mrs. Dover improperly or poorly, they were sorry.
The following motion, made by Mike Reed and seconded by Lynn McCarthy, was unanimously adopted by the Board.
WHEREAS, the person affect by a decision of the Building Commissioner has timely filed an appeal in accordance with Section 1468.15 of the Codified Ordinances of the Village of Evendale (the ”Ordinances”); and
WHEREAS, timely notice of this open to the public meeting of the Board of Zoning Appeals has been given as required by the Ordinances; and
WHEREAS, an application for appeal must be based on a claim that the true intent of the Code has been incorrectly interpreted, the provisions of the Code do not fully apply or the requirements of this case are adequately satisfied by other means; and
WHEREAS, the Board of Zoning Appeals has made the Findings of Fact contained in Exhibit A attached hereto and incorporated by reference herein, based upon testimony and evidence presented to the Board of Zoning Appeals at this hearing,
NOW, THEREFORE, the following resolution was adopted:
RESOLVED, that the appeal of Mrs. Dover from the notice of violation of the provisions of Chapters 1468and 1480 of the Codified Ordinances of the Village of Evendale, State of Ohio, be and hereby is denied; and
RESOLVED FURTHER, that the sense of the Board is that the ninety (90) day time period established by the Building Commissioner pursuant to Chapter 1480, Section 1480.12(c) within which the property owner has to take the required actions, should commence on the date hereof; and
RESOLVED FURTHER, that the Findings of Fact contained in Exhibit A, being based on the evidence adduced and testimony presented, are hereby adopted.
The final order of business for the evening was a review of the Minutes from the preceding meeting of the Board. Upon motion made by Tom Lippert and seconded by Lynn McCarthy, it was unanimously:
RESOLVED, that the minutes from the previous meeting were approved as corrected (the word “by” should be the word “be”).
There being no further business to come before the Board, upon motion by the Chair and seconded by Lynn McCarthy, it was unanimously
RESOLVED, that the meeting be and hereby is adjourned.
Mike Reed, Acting Secretary
EXHIBIT A
FINDING OF FACT
July 12, 2005
Zoning Board of Appeals
Mrs. Dover Appeal
The foregoing matter came on to be heard at a meeting of the Board of Zoning Appeals of the Village of Evendale, Ohio, (the ”Board”) pursuant to notice. The following duly appointed members of the Board were present in person:
Al Schutte Chair
Tom Lippert Member
Lynn McCarthy Member
Mike Reed Member
D. Lynn Watts Member
In addition, the following persons were present and given the opportunity to testify, under oath:
Mrs. Dover 3040 inwood
Lois Scalf 3054 Inwood
Diane Bottom 3045 Inwood
Eileen O’Donnell Lipps 3055 Inwood
Gene Mueller 3055 Inwood
Donald R. Mercer Building Commissioner
The appellant, Mrs. Dover, was invited to make an opening statement. Mrs. Dover testified that the subject property is “dilapidated” and further, that it was “non-conforming” due to a various of errors, cover-ups and various illegal acts committed over a long period of time by various persons associated with the Village of Evendale. Mrs. Dover presented a package of materials, a copy of which are appended hereto, to the Board as evidence of various wrongdoings, including, without limitations, the alleged “non-conforming” status of the subject property. Mrs. Dover asked that any decision of the Board be postponed due to her commitment to care for her ailing husband and her plans to commence litigation shortly.
Mrs. Dover was asked if her appeal met the criteria set forth in Section 1468.15 of the Codified Ordinances of the Village of Evendale, Ohio and given the opportunity to present evidence and testimony of same. Mrs. Dover failed to provide any evidence or testimony regarding same.
The other guests were given the opportunity to testify and with the exception of single witness (who offered no comment), each agreed that the physical condition of portions of the subject property were in violation of Section 1468.09 of the Codified Ordinances of the Village of Evendale, Ohio. There was no evidence or testimony to the contrary. The Board of Zoning Appeals found that as set forth in the notice of the Building Commissioner Donald R. Mercer, the physical condition of portions of the subject property was in violation of Section 1468.09 of the codified Ordinances of the Village of Evendale, Ohio. Therefore, the appeal of Mrs. Dover was denied. The rationale of the Board of Zoning Appeals was that (i) there was no evidence or testimony that any of the criteria for appeal set forth is
Section 1468.15 of the Codified Ordinances of the Village of Evendale, Ohio was satisfied and (ii) there was no evidence or testimony that the physical condition of the subject property was not in violation of the Codified Ordinances of the Village of Evendale, Ohio. The only evidence or testimony presented at the hearing, including the appellant’s own testimony, (and therefore, the only conclusion that could be reached) was that the subject property was in ill repair and dilapidated and that said conditions as in violation of Section 1468.09 of the Codified Ordinanc
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