Civil War Timeline.

VILLAGE OF CHAGRIN FALLS
BOARD OF ZONING APPEALS
June 2, 2009

Members present: O’Brien, Boehringer, Williams, Fricke, Mignogna
Also present: Himes, Byron, Amy Brennan, Lannon

The meeting was called to order at 8:00 p.m. by Chairman John O’Brien.

APPROVAL OF MINUTES

Moved by Mr. Boehringer, seconded by Mr. Williams that the minutes of the meeting held April 28, 2009 be approved. Carried. Ayes: O’Brien, Boehringer, Williams, Mignogna. Abstain: Fricke. Nays: None.

PSJS LLC, 9 RIVER STREET - REQUEST FOR A VARIANCE TO SECTION 1137.04 AND 1138.04, YARD AND BUFFER REGULATIONS, PERMANENT PARCEL NO. 932-06-049.

Mr. Himes explained that the applicant is proposing to put tables and seating in what is the required front yard, 20 feet from the public right-of-way. Our code requires that the 20 foot front yard be set aside for yard area. Section 1138.04 refers to Section 1137.04 for yard and buffer requirements. In the front yard of 20 feet you can have landscape features, fences, walls, and signs. Other accessory uses are allowed so long as they are outside their listed buffer. Seating is not explicitly allowed in either the front yard or in the buffer areas. Section 1119.02 states that uses that are not specifically listed are prohibited. Therefore, they are asking for an exception to that prohibition for accessory uses in the required front yard.

Mr. Himes said at the last meeting this Board had requested an inspection by the fire inspector. That inspection was done. The fire inspector recommended that the area be posted for no smoking with two signs posted on the east and west walls. Also that screening or fencing that would be in front of the gas meters will be easily removable so that the gas company can get in, maintain, and read the meters.

Paul Seegott said Dave’s Cosmic Subs would like to be competitive with all the other businesses in town and have a little patio, which is very small. He said he will make sure that nobody smokes out there. He thinks there is room for four or five little tables.

Mr. Williams said the original plan that you had given us showed a 9 x 18 foot patio. Is that still accurate? Mr. Seegott said it is approximately the same; it might be a little shorter.

Moved by Mr. Williams, seconded by Mr. Boehringer to approve the variance request for 9 River Street by PSJS LLC to Section 1138.04, which is referring to Section 1137.04 in the yard and buffer regulations. I make this motion based on the fact that this appears to be a small variance relative to the intent of the code. The proposed patio is 9 feet wide by 18 feet deep. I don’t think that it alters the character of the neighborhood negatively. In fact, it is a positive improvement to the neighborhood. I don’t believe it will affect governmental services and it should not affect the services to the gas meters that are along side of this patio. I also make this motion for variance approval based on the condition that the no smoking signs be maintained and that the fencing does remain easily moveable. Finally, and probably most importantly, I make this motion based on the fact that the fire department did in fact review the safety of the patio relative to those gas meters and they found it to be acceptable.

Boehringer: Aye, for the reasons of the motion.

Fricke: Aye, for the same reasons.

O’Brien: Aye, for the same reasons and I agree that it does make them competitive with the other establishments in town.

Williams: Aye.

Mignogna: Aye.

Mr. Himes said this will go to Council on June 8,2009.

FLESHER HOLDING COMPANY, LLC - REQUEST FOR A VARIANCE TO SECTION 1353.08(b), RIVER BUFFER LOCATED AT THE INTERSECTION OF BENTLEYVILLE ROAD AND CHAGRIN BOULEVARD, PERMANENT PARCEL NOs. 932-02-001, 932-02-002, AND 931-26-011. (Continued from the April 28, 2009 meeting.)

Mr. Himes said they have approximately 20.5 acres. Almost 13 acres are in Chagrin Falls and 7.5 in Moreland Hills. They are asking for a variance to the River Buffer Ordinance. Our river buffer provides for a 120 foot setback from the river but goes on to state that that buffer shall be extended outward of sensitive areas such as steep slopes, wetlands, and wooded areas that are adjacent to the stream.

Mr. Himes said at the last meeting the BZA requested detailed flood plain delineation based on more accurate and practical information per the Chagrin River Watershed Partners’ comments from the last meeting. On May 27, 2009 we did receive that topographic information from the applicant and a revised flood plain delineation. Both CRWP and the Village’s engineer reviewed it and provided comments.

Mr. O’Brien asked Amy Brennan of the Chagrin River Watershed Partners if the information provided answered the questions you had to be able to give us your views? Ms. Brennan said yes and no. Yes to be able to show some of the base of the elevations, however, the 100 year flood plain as delineated on the drawings did not correspond with the elevations as detailed on the same drawing. She said her recommendations are stated in her letter to Mr. Himes dated June 1, 2009.

Mr. Lannon’s comments on the flood plain map review are stated in an e-mail to Mr. Himes dated June 1, 2009.

Mr. Markowitz said we are not sure that we disagree with anything that Tim Lannon is saying and if you heard what Amy and Tim were both saying that one, when go out there and do the actual survey we will know much more accurately where those lines will be. We agree that the buffer should be the greater of the 120 foot river buffer or the actual flood plain boundary as determined by the Village’s engineer. I don’t think that there is any way during the process here that we are going to be able to say okay this is the exact line you must follow. For our sake, and your sake, I don’t think anybody wants to say this is it today because there is a lot more study that needs to be done. To protect both your interest as well as ours, it should be up to the engineers to make their on-site analysis when the actual survey is done, submit that to the Village, and let the administrator in conjunction with the subdivision review process before the planning commission make that determination. There is an explanation that Joe has for why he thinks sub lot 7, the way it was drawn by Tim on his plan, that there is some elevation there that they think will protect the necessity to extend it out.

Mr. Williams said there are other issues based on this plan which would make it important for us to hear because a part of our ordinance disallows any fill going into the flood plain. Mr. Markowitz said we agree with that. That buffer setback that we are talking about of the deeper flood plain, we agree that that buffer setback that we are talking about of the deeper flood plain, we agree that that should be left in its natural state and that there should be no fill, no structures, no anything.

Mr. Williams said the proposed road goes through part of that flood plain. Mr. Markowitz said if it is determined that the road is in the flood plain there are two options. One is we can relocate the road or two we could seek a variance and to get the variance there are specific standards we would have to meet. As of now we anticipate that we are going to be able to satisfy Tim on that swale issue and if, for some reason, the road has to be relocated we’ve already been working on that because we were thinking about shifting that road independent of this newest analysis. The road we showed you was just one possible plan. It is all going to be subject to whatever the planning commission approves.

Mr. Fricke said if you take your statement that you are willing to agree to the greater of the 120 foot river buffer or whatever the other line turns out to be, so 120 foot, if you look at the site plan that we have, the 120 foot river buffer effectively eliminates half of lot 9, 8, and 7. Mr. Markowitz said it does but not the building pad so you would do one of two things. What we would anticipate doing is the area that is in the flood plain on the plan when it is subdivided would have specific language that would prohibit any development of that and it would have to be maintained in its natural state. You would still be able to build your structure as long as you stayed outside of the flood plain.

Mr. Boehringer asked how that works on a deed restriction? Can you prevent people, once they buy the lot, they can not touch it? Mr. Byron said the problem is always first and foremost enforcement. Who is going to make the complaint, who is going to go in and stop somebody from putting in a lawn in the back yard or something like that? It is a difficult task but it is something that you can manage like you manage other things. Mr. Boehringer said when you look at the map it is pretty level there. In some areas the road or the building areas are lower than what the river is.

Joe Gutoskey, engineer, said I have done about a half a dozen of these where I have actually gone through FEMA and gotten flood plains revised. It is all an interpretation of what happens in sub lot 7. What is happening is you’ve got a high area coming down and then it comes back up. It is a function of what the lowest elevation is there to whether or not the water can get past there. The only way to actually do it is go out there and actually shoot the elevations. Mr. O’Brien asked, with a survey crew? Mr. Gutoskey said yes.

Mr. O’Brien asked Mr. Markowitz to orally take us through this variance application and state why he thinks a variance is warranted. Mr. Markowitz did so and he concluded that there is no use available to us in this Village if you don’t give us the variance.

Mr. Fricke said I remain concerned about what is going on at the top of the hill. I find it ironic at best that Moreland Hills has had to shut down Chagrin Boulevard because of the stabilization of the road and rebuild that road on a hill that is less inclined than this hill. My concern is we are going to make this a Village road, you are going to post a bond for two years, and this looks like a road that has the potential to cost the Village a lot of money to upkeep. To me that is something we should be considering when we are considering a variance, the potential for the Village being saddled with road that is going to be dug into a hill that, at least at the top, seems to be unstable. What is the impact of having this be a private road? What is the consideration for this being a public road versus a private road. Who makes that determination and what is the impact? If it is a private road, can you not build two beautiful homes or you don’t have to comply with the subdivision issue? Mr. Himes said the legal question is to whether our code allows a private road. Mr. Byron said the code requires frontage of lots on a dedicated right-of-way. If you are going to allow a private road there would need to be a variance from that requirement. That is actually your subdivision regulations.

Mr. Markowitz said the answer to your question that I think you are asking is can you consider that impact on the Village and I don’t think you can for this specific variance. The limitation on what you are supposed to consider is in this chapter on the flood plain regulations and in no place in that chapter or in a specific section of variances do they say that is a consideration. We are not dealing with what type of road it should be or where the road should go or what kind of structures need to be maintained for the road. We are talking about what we are going to do to protect the river. Mr. Byron said, would you agree with me the inverse of what you are saying in the front end of that statement is by granting this variance the Village is not commenting one way or the other on whether or not there is a right to dedication or anything of that nature? Mr. Markowitz said I agree with that.
Mr. Markowitz said at the last meeting it was felt that we will have to do more soil borings and that is something that we will have to do before we go to the planning commission, but no one wants to undertake that until we know that we are going to be able to develop on this site. We can’t develop on this site until we get past the river buffer variance.

Mr. Fricke asked, would you ever agree to indemnify the Village for any damages caused by flooding? Mr. Markowitz said I would have to ask my client that but I don’t think that is a kind of question that a municipality should ask somebody because you are not liable for approving the variance. It is very clear in your code and it is very clear in Ohio law. To say to a private property owner, by us allowing you to use your land, you should indemnify whomever against damage for us allowing you to develop and for us exercising our jurisdiction. I don’t think that is appropriate.

Mr. Fricke asked, wasn’t Moreland Hills sued when the Robiskie house fell? Audience members said yes and Mr. Markowitz said Moreland Hills was not found liable.

Mrs. Mignogna asked, is there a reason why you haven’t done an actual survey yet? Mr. Markowitz said we have an arial topography, which is used in development of projects. There is one simple reason why we haven’t done the survey and that is my client doesn’t want to keep spending money on this project until he knows that the river buffer is going to be approved.

Amy Brennan said the issues of how to delineate the flood plain are going to continue. I would like to point out that in this area you have better data than most people have for flood plain maps. You have more recent flood plain maps than most of the communities I work with. What you have in this area are base flood elevations that are determined. Regardless of where that line is on a FEMA map, wherever that elevation is, there is going to be water and I think that that is a very real concern and something that needs to be considered as this project moves forward. Mr. O’Brien said hearing Mr. Markowitz’s assertion that they are willing to live by the greater of the 120 foot setback or the 100 year flood plain line. Is that what I heard you say earlier and would that be your recommendation to us? Ms. Brennan said yes.

Mr. Williams said I have a concern about the delineation of the flood plain in addition to that 120 foot river setback. Sub lot 6, 7, 8, 9, and 10 all have buildable areas that rely on that 100 year flood plain and 120 foot setback to define their area. So, you are talking about a buildable area that literally comes in contact with that flood plain. Mr. Markowitz said it does not come in contact with it because that would mean we would be building in the flood plain and we are not. Mr. Williams said no, the line prohibition is defined by that so when you draw your buildable area, one of those lines is dictated by where the 100 year flood plain is or the 120 foot setback and one of our interpretations has to include is there a danger to life and property due to flooding and you say that whole area is buildable but that one side of that buildable area is dictated by that line. That is why the determination of the exact location of that line is really important because of the potential for hazard where that line is and ultimately where the house would be situated within that buildable area. Building that close to the river at this elevation is always giving cause for consideration regarding residents who would be living there once it’s been done, which is why we are focusing so much attention on where that line should be. Mr. Markowitz said we are really not that close to the river. If you look at the existing homes that are along the river now, there are a lot of homes that are a lot closer than 120 feet to the river and I don’t remember too many homes flooding in this town. These homes can be safely built as long as we stay out of the flood plain.

Mr. Boehringer said, for example sub lot 9, what regulations do we have that people will maintain that back area, the area in the flood plain, not throwing garbage back there or can they build patios? Mr. Himes said the 120 foot river buffer defines the back of the buildable area so they couldn’t do anything in the river buffer and the code says it remains in its natural state. It is really an enforcement issue; deed restrictions and signage. Mr.Markowitz said there is going to be an association and they will enforce these issues.

Curtis Taylor, 279 Bentleyville Road, said he is an industrial designer and he spoke in opposition to the granting of the variance.

Bill Tomko, 36 Maple Street, spoke in opposition to the granting of the variance.

Bob Goldman spoke in opposition to the granting of the variance request.

Tony Martino, 20 Church Street, spoke in opposition to the granting of the variance.

Cindy Tabor spoke in opposition to the granting of the variance.

Cathy Goldman spoke in opposition to the granting of the variance.

Cheryl Culver, 459 Bentleyville Road, spoke in opposition to the granting of the variance.

Mr. Tuthill, 60 Church Street, asked several questions, which Mr. Byron answered.

Lydia Champlin, 100 Pheasant Run Drive, spoke in opposition to the granting of the variance.

Mrs. Tuthill, 60 Church Street, spoke in opposition to the granting of the variance.

Mr. Fricke asked if someone could summarize the evidence, if any, on the stability of Bentleyville Road. As I look at 1353.05 for giving variances in the flood damage area, one of the considerations is the cost providing governmental services during and after flood conditions. So clearly, it says including streets and bridges. Has there been any evidence on either side? Has anyone looked at the potential cost of Bentleyville Road from that angle?

Mr. Markowitz said what you need to look at is if we grant the variance to allow development to be 120 feet or the flood plain setback, is that, granting that variance, going to affect Bentleyville Road and there is no evidence of that. What you are talking about is later, when the subdivision goes in can you build that subdivision and not negatively impact Bentleyville Road. It is a totally separate and unrelated issue and not within the scope of the flood plain regulations because there is no evidence that the flood plain is affecting Bentleyville Road. The county engineer had made a determination that there was some seepage of water that was coming from the west that was coming underneath Bentleyville Road and it had undermined the road. It had nothing to do with the Chagrin River and it had nothing to do with the river buffer.

Mr. Fricke said I thought the hillside ordinance is part of the river buffer. Mr. Markowitz said this is not a hillside ordinance variance.

Mr. Byron said there has been a lot of confusion about what the development is going to do to Bentleyville Road. He said that decision is not going to be made in Chagrin Falls, it is going to be made in Moreland Hills. Mr. O’Brien said whether or not the hill can be stabilized is not before us tonight. Further comments were heard and questions were answered.

Mr. Fricke asked if they deny the variance tonight, is Mr. Flesher stopped from coming back and seeking another variance on say a private drive or another piece of property? Mr. Byron said they are requesting a variance drawn to the configuration and setback and within that variance they can configure a roadway or whatever. They are requesting a variance from the strict application of the code that would take it all the way to the river buffer so I think that is going to stop them from coming back with any kind of a request. They could also litigate it. It is not that I am concerned about litigation, it is a concern that you will lose the litigation.

Mr. Williams said getting back to the flooding in this area, we have talked about 100 year floods as a result of rain not necessarily floods as the result of natural disaster, natural occurring dams whether that be a combination of fallen trees and silt, whether it be buildup of ice and the backing up of water for some period of time while that natural dam has occurred. Downstream from here there is a narrow spout where ice apparently in the past has built up; I haven’t seen it myself. Does that affect how we consider the 100 year flood plain and that the FEMA line has drawn for us or the 120 foot river buffer setback. Mr. Himes said it can. There are ice dams or other log jams, things like that that can affect the flood elevations on properties. The 100 year flood boundary is mapped by FEMA in an estimation of what the flood will be, the 1% chance flood in a given year, but it considers free flowing conditions in the river so if you do have things like ice jams or log jams it could certainly be much higher than what the FEMA map shows. And, you can always have storms that are of greater intensity than the 100 year storm. It is an approximation to try to keep structures out of known flood hazard areas. You can use other evidence of flooding such as photographic evidence that the flood elevation reached a certain height. Currently, on this property, all we have is a FEMA map and a FEMA flood profile so that is what we would use to determine what the flood elevation is. Mr. Williams said since we are a fact-finding body, as well as a body that is supposed to make interpretations of the code, do we have any factual evidence of those kinds of backups happening that would cause us to wonder if that 100 year flood plain is accurate under those sets of circumstances? Mr. Himes said I do not have any other evidence other than the FEMA study.

Ms. Brennan said you have to get back to what is that base flood elevation. That base flood elevation is defined by FEMA and if it is an elevation of 871 if you have a spot that is within that area that is lower than 871 then it is in the flood plain. In your existing building code, you have a requirement that the lowest enclosed floor of a structure is to be eighteen inches above the base flood elevation. That is your factor of safety for unknown circumstances such as ice jams and log jams. Mr. O’Brien said one issue is the issue of should we ask Mr. Flesher to incur another $50,000 to do the survey before we do this given the fact that they are willing to stipulate that they will go by whatever the survey shows. Mr. Byron said that is more of an engineering question and Tim can quantify it for you what better information you would have as a result of the next level of survey. Mr. O’Brien asked, is it really relevant if they have agreed that they are going to live with whatever the actual survey shows. Mr. Byron said if the survey comes back and shows that they lose 6, 7, 8, 9, & 10 and the road because that is where the delineated flood plain is, they are going to be stuck with their promise. That is going to be the extent of the variance that you granted and it is entirely consistent with what the code provides.

Mr. O’Brien said, what I hear then is it isn’t really necessary for us to make a decision tonight to have that additional survey because whatever it says they are going to have to live with it.

Mr. Williams said we have got Mr. Lannon’s lines here included identification of the swale which cuts across the property from sub lot #7 across the back of the cul-de-sac, which captures a part of sub lot 11 as well. I guess the hard question is, is that 161.6 foot elevation of that swale, which extends off the end of sub lot 7 and tie that in as a part of the flood plain. The sections of the northwest sections of 8 and 9 are above that elevation but if you can’t get to it because of the interpretation of that swale is being a part of the flood plain that affect the build, in fact you can’t build on that because you can’t get to it and build a road to it. There are a number of questions that have yet to be answered about ultimately where this line is determined and if you are willing to live with wherever that interpretation ends up being I think it is important that you, that we acknowledge that in this process. Mr. Markowitz said yes.

Mr. Boehringer asked, a survey is a survey and that is hard fact, there is no interpretation? Mr. Lannon said there is interpretation where the flood plain line is but the survey would be the final answer on what the ground elevation is but there is plenty of interpretation left on how to apply the flood plain and drawing that line in. Technically, I should say if referring to the 1% chance flood, not the 100 year flood meaning, in any given year there is a 1% chance of having a storm of that magnitude.

Moved by Mr. Williams, seconded by Mr. Boehringer to adjourn into executive session to discuss imminent litigation with legal counsel. Carried. Ayes: O’Brien, Boehringer, Fricke, Williams, Mignogna. Nays: None. (10:13 p.m.)

(10:35 p.m.) Moved by Mr. Williams, seconded by Mr. Boehringer to propose a motion to grant relief from the extended river buffer requirement as defined under Section 1353.08(b) and requiring them to comply with the setback defined at 100 yard at the 100 year flood plain or the 120 foot buffer line, which ever is greater subject to the final delineation and the planning process with the stipulation from the homeowners association that the homeowners association’s covenance and restrictions prohibiting disturbance of the buffer area with an enforcement clause or an enforcement provision against the association with restoration provisions. If P&Z grants permission, maintenance of an orange safety barrier must be maintained during construction to maintain the buffer area. Assuming that the project is completed, continuing signage must be maintained by the homeowners association. I would also like to add that this motion deals specifically with the river buffer variance request and does not take into consideration those issues which will come before the Planning and Zoning Commission. Carried.

Boehringer: Because of the situation of just the river buffer that we are taking into account, and that the Chagrin Falls experts have given us their opinions, I will vote affirmative.
Fricke: Well, I think this is one of those moments that gives lawyers bad names. I am a lawyer so I am not referring to others in the room. Emotionally I think this is a bad thing. I think my lay understanding of the project is that this project is rife with errors, or I should say difficulty. I understand, my concern has always been Bentleyville Road and the top of the hill and I understand that the issue before is flood related and I agree with what Tom said. Our own experts have said that they think this is doable as to the flood language. I also think that P&Z will have a lot to say on what is happening at the top of the hill. I am not sure this project is feasible and I think I hope P&Z will ferret through the facts and get to those issues. So, I am voting yes, in favor, but I have reservations of practical sense and legal sense I think I have to vote yes but I am hoping that P&Z is militant, and I am sure they will be, in making sure that every intent of the subdivision regulations are complied with.

O’Brien: I have said it at the last two meeting that I have concerns about the viability of the project. I did get some comfort from Mr. Esser who said that hill can be stabilized. I realize that is not the issue we are talking about tonight, we are talking about a very narrow issue and with respect to that issue, again our two experts here tonight have told us that they have no reason for us to vote against it based upon those issues. So, my vote is affirmative.

Williams: I also vote aye, in favor of the motion. I would also like to add that a substantial amount of factual evidence has been compiled during this process. Factual evidence that may be used by planning and zoning in their consideration of this project. A great deal of factual evidence was also gathered as is relevant to our particular decision tonight regarding the river buffer setback and the 100 year flood plain line. I would also like to note that we have received agreement from the applicant that the delineation that will be established by the Village will be honored by the applicant during this process and that our vote on this one narrow issue is merely a step in the process; it is not the finish of the process.

Mignogna: I would like to vote in favor but I would also like to indicate my reservations. This evening it was very helpful to hear from the Village experts and get the advise that we had but certainly I think that having that actual survey in front of us to be able to take a look at the slope and the concerns about the water would have been helpful for this process.

Mr. Himes said this will go to Council for final action on June 8, 2009.

The meeting adjourned at 10:41 p.m.

_____________________________
John O’Brien, Chairman
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