BZA Meeting Minutes - June 23, 2014
Chairman Fritz called the Board of Zoning Appeals meeting to order at 6:08p.m.
PRESENT AT ROLL CALL: Mr. Bolek, Mrs. Cooper, Ms. Corcoran, Mr. Fritz, Mayor Renda, Mr. Stanard
OTHERS PRESENT: Dave Strichko, Building Inspector, Aimee Lane, Assistant Law Director, Jeff Filarski, Village Engineer, Sherri Arrietta, Clerk of Council
Mrs. Cooper made a motion seconded by Mayor Renda to approve the minutes of the November 25, 2013 meeting.
AYES: Mrs. Cooper, Mr. Fritz, Mayor Renda
ABSTENTIONS: Mr. Bolek, Ms. Corcoran, Mr. Stanard
Chairman Fritz declared the public hearing open at 6:10pm. At this time, Mrs. Lane administered the oath to those who wanted to speak at the hearing.
170 Glen Road
Mr. Howard Selee was present at the meeting on behalf of the applicant, Mrs. Nanduri. He stated that this parcel of land is made up of two lots; Mrs. Nanduri originally owned both. Mr. Selee stated that the front lot (S/L 2) is vacant and the rear lot (S/L 1) has a house and garage on it. He stated that the applicant put S/L 1 up for sale and an offer was made to purchase it along with the additional 56 x 225 foot strip of land that is part of S/L 2. A contract was entered into between the buyer and seller and the deed for S/L 1 was transferred in February 2014. The buyer is now looking for the 56 x 225 foot strip of land that he was promised by the seller. Mr. Selee stated that the seller (Mrs. Nanduri) cannot produce it because if she were to split off that section of land, it would create a non-conforming lot (only 1.77 acres). He stated that the buyer of S/L 1 is not willing to trade off footage to compensate in order to keep S/L 2 a conforming lot (2 acres), therefore Mrs. Nanduri is requesting a lot variance in order to follow through on the agreement made with the buyer.
There were no residents in attendance wishing to speak for or against this request.
Mayor Renda asked Mr. Selee to define what the practical difficulties are. Mr. Selee stated that the garage, asphalt parking area, and the septic are all on the adjacent property, which constitutes an encroachment. He stated that there is also a signed contract that states that the seller would convey that strip of land to the buyer. Mayor Renda asked Mr. Selee if there were other ways of dealing with this that would not include creating a non-conforming lot. Mr. Selee stated that there is not because the owner of S/L 1 is not willing to trade land. Mr. Fritz stated that he believes that there are other options available to allow both lots to conform to the 2 acre minimum, if you remove the fact that the buyer (new owner of S/L1) is not willing to work out another way. Mr. Selee agreed that there are other ways.
Mrs. Cooper stated that she discovered that the original owner of both lots (Mrs. Nanduri) originally purchased S/L 1 first and three months later, purchased S/L 2. She stated that she does not know if that is when Mrs. Nanduri discovered the issue with it encroaching, but she obviously had to be aware of the issue.
Chairman Fritz declared the public hearing closed at 6:20pm.
Mr. Fritz stated that he believes that approving this would be like taking a step backward because of the lawsuit the Village went through in order to protect its’ 2 acre minimum requirement. Mr. Bolek agreed and stated that he can see other ways of solving this issue without creating a non-conforming lot. He stated he feels that this is more of a legal issue between the buyer and seller. Mrs. Cooper agreed as well and stated that she believes that it is very important to not create an un-buildable lot. She stated that the seller (Mrs. Nanduri) understood that situation years ago and may be why she purchased the second lot.
Mrs. Lane informed Mr. Selee that she spoke with the applicant and advised them about “Res Judicata” which means that if there were to be a negative ruling on this request today, the applicant could not bring back this same request before this board; they would have to bring back a different request. She stated that therefore, they may want to consider either withdrawing this request or seeking a continuance.
At this time, Mr. Selee decided to withdraw this request.
269 Bentleyville Road
Chairman Fritz declared the public hearing open at 6:25pm.
Mr. Rob Weber, property owner, was present at the meeting. He stated that he and his wife just purchased the 20 acre, multiple parcel property from Mr. Flesher. Mr. Weber stated that prior to purchasing the property, he did a lot of research to determine the feasibility to build one house on the entire property. He stated that it is their intent and desire to build one single-family home on the lower level of the parcel, and preserve as much of the rest of the parcel in its natural state as they can. Mr. Weber stated that he plans to build a 5,000 square foot house that will fit in with the context of the landscape and do respect to the land. The house will actually be located in Chagrin Falls. He stated that they purchased the property with the confidence that they could build a single-family driveway going downward. Mr. Weber stated that it is, however, feasible to build a conforming driveway, but it would be built closer to the hillside. Mr. Weber provided the board with a plan of a conforming driveway (10% grade) and stated that none of it would be constructed in Moreland Hills at all. He stated that he does not care for this driveway because in order to have the 10% grade, it will be much longer in order to traverse the hill and also part of the driveway will be constructed close to the hillside. Mr. Weber explained that the driveway he is proposing with a 12% grade is shorter, stable, and will actually get off the hillside faster which he believes is less of a risk, and also does not require the removal as many trees as the conforming driveway does. Mr. Weber showed the members a plan of the proposed driveway. He stated that the construction would start in Moreland Hills near an existing garage and a house, which will be razed, and will actually run down the hill through where the house and garage were located. This will shorten the driveway from 1650 feet to 1350 feet and it will be 165 feet lower on the hill which he believes will create better stability. Mr. Weber referred to question number 9 on his application where he has highlighted several of these points. He stated that he will be meeting with Fire Chief Zugan to get him comfortable with the ingress and egress of the 12% grade of the driveway, but that he has already incorporated some of Chief Zugan’s feedback as it relates to requirements. Mr. Weber stated that he has also met with Mr. Filarski and he stated that he has incorporated Mr. Filarski’s feedback in his plan as well. Mr. Fritz informed the members that in speaking with Chief Zugan today, he was assured that Chief Zugan was comfortable with either driveway option.
Mr. Fritz asked Mr. Weber if there was a delineation in the route that the conforming driveway takes and the one the non-conforming driveway takes. Mr. Weber stated that the non-conforming (12% grade) driveway actually moves away from the neighbors (Goldman’s) faster and it does not curl back up; it would be 60 feet farther down the hill.
At this time, Mrs. Kathy Goldman, resident and neighbor to the property located at 269 Bentleyville Road was sworn in under oath by Mrs. Lane. Mrs. Goldman stated that she is thrilled that Mr. Weber bought the property and that he is only planning on putting one house on the property. She stated that she wanted to let this board and Mr. Weber know that there was a house there, to the right of the little driveway that did start to slide down the hill years ago. She stated that that the reason that there are no trees in that area is because Moreland Hills required that house to be torn down. Mrs. Goldman stated that she has concern for Mr. Weber if he is going to be building in that area that already slid out. She showed the board members the area she is referring to on the plan. Mr. Filarski stated that the plan Mr. Weber is proposing will actually cut through all the stuff that moved in that area and will take the weight off the hillside, which is a good thing.
Chairman Fritz declared the public hearing closed at 6:48pm.
Mr. Bolek asked Mr. Filarski if the 10% grade requirement was to protect the hillside or if it is for the convenience of the user and/or emergency services. Mr. Filarski stated that the requirement is more for the user and in this case, the existing drive is 14%, so this would in fact be less than the existing and better for the hillside because less of the hillside will be disturbed with this proposed layout. Mr. Stanard stated that in construction, they use 12% grades very often and it is really not that steep. He also stated that he believes that it is very fortunate that Mr. Weber is presenting them with an overall plan to build only one house. Mrs. Cooper asked if a letter from Chief Zugan stating that he is in support of the 12%, would be required. Mrs. Lane stated that she does not believe that would be required because Mr. Fritz was able to confirm that with his discussion with Chief Zugan. Ms. Corcoran asked Mr. Filarski if the geo-technical report evaluating the slope stability, that was referred to in his letter, was received. Mr. Filarski stated that a letter was forwarded on June 19th from Solar Testing, who did the original testing for Mr. Flesher, with a recommendation of a 3 to 1 slope. He stated that he will look at the final plan to verify that that that has been conformed to.
Mrs. Lane recommended that the attachment to the application submitted by the applicant be utilized as the findings of fact which are as follows:
- Do special conditions and circumstances exist which are peculiar to the land or structure involved and not applicable generally to other lands or structures in the same zoning district? The 20 acre parcel, which spans both Moreland Hills and Chagrin Falls, is unusually large, has river frontage, and access to the main body of the parcel is down a hillside. Additionally, and because of that, there is a high level of interest in maintaining as much of the parcel as possible in a natural undeveloped state.
- Will the property yield a reasonable return or will there be beneficial use to the property without the variance? The variance being sought is to allow the construction of a driveway with up to a 12% slope, as opposed to a maximum 10% slope as called for in the hillside zoning requirements. Creating a driveway with a 10% slope, without a variance request is possible on the site, although not desirable. Reasons will be explained in the answers that follow. But use of the site is still possible if the variance is denied.
- Is the variance substantial and is it the minimum necessary to make possible the reasonable use of land or the structures? Increasing the degree of slope from 10% to 12% makes the driveway steeper. Preliminary conversations have been had with Chagrin Falls Fire Chief Zugan, and additional information will be provided to the Village to determine whether the granting of the variance will have a substantial impact on the safety, stability or access to the site. From a benefit standpoint, as outlined below, it is substantial if this variance were granted. I have had an initial conversation with Fire Chief Zugan and will be meeting with him to determine if the increase in slope would be a hindrance to emergency access on the property. As the house will be sited on the Chagrin Falls portion of the property, providing emergency services falls under his jurisdiction. So his judgment is key given his knowledge of the area and Chagrin Falls emergency vehicles, and this will be relayed to the BZA. But in doing some research, I am aware of other municipalities that have driveway slope requirements of 12% without concern with respect to emergency vehicle access. I have soil testing and engineering and will be meeting with the Village Engineer to ascertain or confirm that the increase in slope will not have a detrimental effect on the hillside. I am not aware of anything that would make this 12% slope driveway going down the hill any less or more stable than a 10% driveway. It is primarily the shear factor and risk of soil slippage as a result of how and where the driveway is cut into the side of the hill that is the issue for hillside stability concerns. So in this respect, with other factors being equal, the less driveway traversing the hill, the lower the risk and the better the alternative. The 12% sloped driveway for which the variance is being sought, is approximately 300 feet shorter, with most all of the difference being on the hillside, than the alternative one designed with a 10% slope. That means 300 feet of less risk of hillside issues. In addition to the potential benefits of less length along the hill, thereby lessening potential hillside risks, there are substantial other benefits to the 125 driveway option. A drive that is 300 feet shorter means many less trees cut, less earth bull-dozed, and less pavement on this natural and wooded parcel. The land owners, nearby neighbors, and even area citizens interested in preservation would all benefit from having less development/driveway construction on this wooded property. Regarding the minimum necessary variance to make reasonable use, as discussed in the previous question, a conforming driveway without a variance can be built on the parcel. However, the only way to significantly shorten it, and obtain the benefits of preserving more land in a natural state (which is consistent with the code’s intent) is to increase the slope.
- Would the essential character of the neighborhood be substantially altered or would adjoining properties suffer a substantial detriment as a result of the variance? As discussed above, the 12% driveway option shortens the drive by about 300 feet which lessens the need to cut down trees, cut into the hillside, bull-doze earth, and lay blacktop on what is now a wooded piece of property as compared to a 10% conforming option. This benefits everyone. With respect to the nearest neighbor, the proposed variance takes the driveway further away from the shared property line, faster. Given the 20 acre size of the parcel, the other neighbors who are much further away in proximity, are less affected. To any extent that they are, I would assume they would likely prefer less development on the parcel by having a shorter driveway for the reasons discussed above.
- Would the variance adversely affect the delivery of government services such as water, sewer or trash pick-up? As discussed in question 2, I have had an initial discussion and will be meeting with Chagrin Falls Fire Chief Zugan to determine if he believes that granting the 12% slope variance would represent an obstacle to providing emergency fire or rescue services to the house that will be built Other than that, no other government services will be adversely impacted by the granting of the variance.
- Did the property owner purchase the property with the knowledge of the zoning description?
- Do special conditions exist as a result of the actions of the owners?
- Can the property owner’s predicament feasibly be obviated through some method other than a variance? As discussed previously, a conforming driveway can be built on the parcel.
However, the only way to significantly shorten the driveway and obtain the benefits of preserving more land in a natural state is to increase the slope of the driveway.
- How would the spirit and intent behind the zoning requirement be observed, and substantial justice be done by granting the variance? The stated intent of the Moreland Hills hillside zoning ordinances is stated as follows:
- To protect the public and private property owners from the potential damage to human life and safety and property damage that could potentially be caused by increased hillside instability.
- To assure access to properties within the Protected Hillside Zone by emergency police and fire vehicles to protect persons and property.
- To preserve and protect the unique scenic resources and scenic river habitats in the Protected Hillside Zone.
- To preserve and protect the valuable hydrologic systems, fragile hillside and valuable flora and fauna in the Protected Hillside Zone.
- To permit, subject to the best available technology, development on Protected Hillside Zone areas while conserving and promoting the public health, safety, convenience and general welfare by minimizing problems due to water runoff and soil erosion problems incurred in adjustment of the topography to meet developmental needs.
- To use the best accepted design, landscape architecture, architecture, civil engineering and hydrological engineering to preserve, enhance and promote the existing and future appearance and resources in Protected Hillside Zone areas.
- To preserve and enhance the natural beauty of Protected Hillside zones by encouraging the maximum retention of natural topographical features such as natural drainage swales, streams, slope ridge lines, rock outcropping, vistas from and of hillside, trees and other natural plant formations and retain the sense of identity and image that the Protected Hillside Zone areas now impart to the Municipality.
- To complement the other actions of this Council including the enactment of an erosion control ordinance, the enactment of a vegetation preservation ordinance and the designation, along with other communities, of the Chagrin River Corridor as a “Scenic Corridor” which should be protected and preserved.
See paragraphs (c), (d), (g), and (h) highlighted above. So long as the soil engineering confirms that hillside stability can be maintained (which applies to both a 10% conforming driveway or the proposed 12% driveway for which the variance is being sought), the proposed variance actually better serves the intent of the regulations than that of the conforming alternative. It is 300 feet shorter. It transverses and disrupts the hillside much less. It has a smaller footprint Less of the parcel will be converted from its natural state to a black-top driveway with associated berms and clearances.
- Will the granting of this variance requested confer on the applicant any special privilege that is denied by this regulation to other lands, structures or buildings in the same district? Not that I can think of.
- Would a literal interpretation of the provision of the code deprive the applicant rights commonly available to other properties in the same district under the terms of the code? Not that I can think of. Mrs. Lane stated that she would also like to add two items to the findings of fact:
- The applicant has confirmed with Fire Chief Zugan that the 12% grade is acceptable from a safety standpoint, specifically for emergency access to the property and furthermore, the applicant has incorporated some design elements for the driveway that were specifically suggested by Chief Zugan.
- The applicant has provided engineering information that has been reviewed by the Village Engineer, and the Village Engineer has found that a slope stability factor of 1.5 to 1 is sufficient for the driveway.
Mayor Renda made a motion seconded by Mr. Stanard to accept the findings of fact.
AYES: Mr. Bolek, Mrs. Cooper, Ms. Corcoran, Mr. Fritz, Mayor Renda, Mr. Stanard
Mr. Bolek made a motion seconded by Mrs. Cooper to approve the variance for a 12% grade for the driveway located at 269 Bentleyville Road.
AYES: Mr. Bolek, Mrs. Cooper, Ms. Corcoran, Mr. Fritz, Mayor Renda, Mr. Stanard
Mayor Renda made a motion seconded by Mrs. Cooper to adjourn the meeting at 7:00p.m.
AYES: Mr. Bolek, Mrs. Cooper, Ms. Corcoran, Mr. Fritz, Mayor Renda, Mr. Stanard
Sherri Arrietta, Clerk of Council