Village of Evendale
Zoning Board of Appeals
Minutes for the
March 14, 2011 Meeting
The Board of Zoning Appeals (the “BZA”) was called to order by Chairman Al Schutte at 7:30 PM on Monday, March 14, 2011, in the Council Chamber, Village of Evendale Municipal Building. Attending were Chairman Al Schutte, member Dave Harwood, Lynn McCarthy and Mike Reed. Member Tom Lippert was absent. Supporting the BZA were Time Burke (Village Solicitor), Jack Cameron (Assistant to the Mayor) and Pam Morin (Building Department).
The following request was heard:
Rural Building of Cincinnati, LLC, 10557 Medallion Drive
1. Appeal of the Building Commissioner’s denial of the applicant’s Zoning Certificate of Compliance for the Immigration and Customs Enforcement Agency (ICE) tenant;
2. Request for a variance to allow the property, located in the General Industrial District, to be occupied by the Immigration and Customs Enforcement Agency.
Village of Evendale Board of Zoning Appeals Decision:
A meeting of the Evendale BZA was held pursuant to notice March 14, 2011 to consider an appeal and a request for a use variance regarding property at 10557 Medallion Drive (“the Property”). Witnesses were sworn, the opportunity for cross-examination was available, and the meeting was recorded on audio tape, video tape and by a stenographer.
The following memorializes the decision made by the BZA.
I. FINDINGS OF FACT
1. Rural Building of Cincinnati, LLC (“Rural Building”) is the owner of the property located at 10557 Medallion Drive in the Village of Evendale (“the Property”). The Property is in the General Industrial Zoning District (GI) as are the adjacent properties
2. On January 19, 2011, Rural Building submitted an application for the Zoning Certificate of Compliance. The proposed use for the Property, as stated in the application is a facility or the Immigrations and Customs Enforcement Agency (ICE), who would be a tenant.
3. The appeal at issue for the Zoning Certificate of Compliance was filed on the appellant’s behalf on January 19, 2011. The application defined the proposed use as:
“The building will house approximately 45 staff, mainly in a supervisory, administrative or support roles. In addition to the standard office spaces, there will be an employee fitness center and lockers, kitchen/break room, file/storage rooms, reception areas and various administrative/IT spaces. The facilities will have four detainee hold rooms, designed as a temporary holding area only. Detainees will generally be interviewed/processed in no more than eight hours and then returned to county police facilities. Detainees are supervised by ICE personnel at all times.”
4. On January 21, 2011, the Building Commissioner of the Village of Evendale issued a decision denying the request for a Zoning Certificate of Compliance because in the GI Zoning District “a detention facility is not a permitted use.” Rural Building appealed the decision of the Building Commissioner.
5. On March 14, 2011, this Board held a hearing on the appeal. Attorney C. Francis Barrett represented the Appellant, Rural Building.
6. The Appellant had also filed an application for a use variance. During the course of the hearing, Mr. Barrett, on behalf of the Appellant withdrew the variance application.
7. Appellant had the opportunity to present evidence, identified some two dozen exhibits and presented the following as witnesses, Jon Spears and Don Eastveld, owners of Rural Building; Ben McNab of Cassidy Turley, the real estate firm that had been seeking a new tenant for the Property; and Jenny Hubbard of the real estate company Jones Lang LaSalle, representing the Government Services Administration (“GSA”) which was seeking a site for ICE.
8. No representatives of ICE or the GSA were available to provide testimony to the BZA. Therefore, many of the questions could not be answered.
9. Among the exhibits Me. Barrett described were documents submitted to the Village of Evendale without any authority to do so by Josh Hausman, a competitor of the appellant, which according to Mr. Barrett, inaccurately described the proposed use of the ICS facility.
10. Also among the exhibits Mr. Barrett presented was a letter from Robert N. Kramer, the Lead Portfolio Manager of ICE, describing the proposed uses of the ICE facility. The text of that letter is set forth below:
January 7, 2011
Village of Evendale
10500 Reading Road
Evendale, Ohio 45241
To Jack Cameron & Donald R. Mercer:
US Immigration and Customs Enforcement (ICE), the largest investigative arm of the Department of Homeland Security (DHS), is responsible for eliminating vulnerabilities in the nation’s border, and with economic, transportation, and infrastructure security.
The ICE facility proposed in Evendale, OH will employ a staff of approximately 45, most of whom are in supervisory, administrative, or support roles. In addition to standard office space, the 26,000 SF facility will house an employee fitness center, and lockers, kitchen/break room for staff numerous file/storage rooms necessary to support the agency’s work, a large reception area, and various administrative/IT spaces.
The facility will have four detainee hold rooms, designed as temporary holding area only. Detainees will generally be interviewed/processed in no more than eight hours, and then returned to county police facilities. Detainees are supervised by ICE personnel at all times.
We appreciate your assistance with this project.
Sincerely,
Rober N. Kramer
Lead Portfolio Manager – Region 5
Office of Facilities Administration
11. Representatives of the following businesses in the Medallion Drive area, near the Property, were present and provided letters expressing their positions against approval of the ICE facility: DeCarlo & Wagner, LLC; TWC Concrete Services; Brendamour Warehousing Distribution & Services, Inc.; Contractors Material Company; CDC Distributors, Inc.; Medallion Drive, LLC; KDM Signs, Inc.; Gold Medal Products Co.; Silco Fire Protection Company and Watkins Mfg., Inc.
12. Attorney Monica Donath Kohnen was present representing DeCarlo & Wagner. She submitted a written statement and had the opportunity to ask questions and offer argument.
13. Attorney James Adam Browning was present, representing Gold Medal Products. He submitted a written statement, and had the opportunity to ask questions and offer comments.
14. Other business representatives had the opportunity to ask questions and offer comments.
15. The concerns expressed by these businesses included the security and image of the facility and the negative impact it would have on property values in the area. They noted the use proposed is not consistent with neighboring and nearby uses. The written statements also raised the issue that the proposed use was not permitted under the current GI Zoning District and that any heavy-duty fence or other perimeter security would be inconsistent with the existing development of the area, and would be aesthetically displeasing.
16. Copies of the letters from the adjacent property owners were provided to Mr. Barrett, who did not object to the letters being made part of the record. Mr. Barrett did not question any of the authors of the letters.
17. Appellant’s application for a use variance included a site plan showing a K12 fence surrounding the Property. A K12 fence is a heavy duty fence designed to provide a crash barrier preventing vehicles from entering the premises. The applicant offered testimony that indicated that K12 fence would not be necessary. Appellant’s witnesses indicated some sort of fence or barrier may be required, but did not k now what specific type of fencing may be necessary.
18. Witnesses for the appellants agreed that detainees at the proposed facility would be locked in specified rooms. They will not be free to leave.
19. In making its decision, the BZA did not consider any previous application improperly filed by Josh Hausman, a competitor of the Appellant, for the use of the Property.
20. Based on the testimony and material supplied by adjacent and nearby property owners and businesses, the ICE facility will have a negative impact on those businesses, cause some to consider relocating and as a result would have a negative impact on the Village as a whole.
II CONCLUSIONS OF LAW
1. Detainees will be locked in specific rooms. They will not be free to leave and will be supervised by ICE personnel at all times. In essence, the detainees will be under custodial arrest. There, the proposed facility is, at least in part, a detention facility.
2. The Section 1250.03 of the Evendale Zoning Code identifies permitted uses in the GI Zoning District, as including those uses permitted in the Office-Research District does not allow a detention facility as permitted use. There was ample evidence presented that the proposed ICE facility would be, at least in part, a detention facility, which in not a permitted use.
3. The detention rooms are also not permitted as an accessory use. Section 1266.03(c) of the Evendale Zoning Code states “no accessory use or structure shall be permitted if it would have significant negative impact on any adjacent property or on the area as a whole”. Evendale if viewed as an accessory use, the ICE use, with its detention facilities, would have a significant negative impact on adjacent properties and on the area as a whole, as evidences by the testimony presented by the adjoining property owners.
III CONCLUSION
For the foregoing reasons, the BZA of the Village of Evendale unanimously upholds the decision of the Evendale Building Commissioner denying a Zoning Certificate of Compliance for the ICE facility proposed to be located at 10557 Medallion Drive and denies the appeal filed on behalf of Rural Building of Cincinnati, LLC. Because counsel for the appellant has requested that the Board not consider appellant’s application for a use variance, that application is withdrawn and no action need to taken on it.
Motion was made by Mr. Reed and seconded by Mr. Harwood.
Vote:
Affirmative: Messers Harwood, Reed, Schutte and Ms. McCarthy
Negative: None
Lynn McCarthy made and Dave Harwood seconded the motion to approve the minutes to the February 9, 2011 meeting as read. The motion passed with a vote of 4 yes, 0 no.
Al Schutte, Chairman
Board of Zoning Appeals.
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