DEERFIELD TOWNSHIP

BOARD OF ZONING APPEALS

6:30 PM  - AUGUST 14th, 2008 

MINUTES

CALL TO ORDER                       Michael Kean                                    

ROLL CALL 

PRESENT:        James Klatte, Michael Kean, Brian Leary, Gregory Porta, and William Lantry,

ABSENT:          James Rinehart.

STAFF:             Lois McKnight, Hayfaa Wadih, Marilyn Arnold, Matt Clark

Also present was township legal advisor, Scott Phillips. 

Motion Brian Leary moved, seconded by Greg Porta, to approve the minutes of 04/10/08.

The motion was approved on the following vote:  AYES:  James Klatte, Michael Kean, Brian Leary and Gregory Porta.  NOES:  None.  ABSENT:  James Rinehart.  ABSTAIN: William Lantry. 

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Lois McKnight said she had sent an invitation to the BZA Members for the Comprehensive Planning Forum, Thursday, August 21^st, from 5:00 to 8:00 PM.  She said it would be posted on the website also.  She said the next step is to look at the Zoning Resolution, evaluate it in light of the newly adopted Comprehensive Plan, including general changes and updates.  We will look at how best to formulate our code.

Jim Klatte asked if there will be a case next month.  Hayfaa Wadih said there will be. 

Motion There was a motion by James Klatte, seconded by Greg Porta to stop this meeting until the attorney arrives.

The motion was approved on the following vote:  AYES:  James Klatte, Michael Kean, Brian Leary, William Lantry, and Gregory Porta.  NOES:  None.  ABSTAIN: None.  ABSENT: James Rinehart.

Motion There was a motion by Brian Leary, seconded by James Klatte to continue this meeting as the attorney had arrived.

The motion was approved on the following vote:  AYES:  James Klatte, Michael Kean, Brian Leary, William Lantry, and Gregory Porta.  NOES:  None.  ABSTAIN: None.  ABSENT: James Rinehart.

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Scott Phillips administered the oath to those giving testimony.

Mike Kean explained the procedure for the meeting.  He explained the request prompting this public hearing.

Case #2008-226                     Jeffrey Stauffer, 4135 Socialville-Fosters Road, appealing the decision of the Deerfield Township Zoning Inspector dated June 6, 2008, concerning “the use of residential zoned land for commercial enterprise in violation of Deerfield Township Zoning Resolution Articles 10.01, 10.02, 10.03, 10.04, 25.04, 25,11 and 25.14.”

Staff Report Matt Clark gave the history of the complaints regarding this Stauffer property at 4135 Socialville-Fosters Road, starting in March 13, 2008, concerning a sign at a Residential Single Family Zoned property.  When he met with Mr. Stauffer he said he noticed that there were piles of landscape materials.  He explained the dates for letters which were sent and meetings he had with Mr. Stauffer.  Matt said storing and selling landscape supplies is not allowed in Residential Single Family Zoning.  Mr. Stauffer said that he was being “singled out” and there were others who were currently doing the same thing.  Mr. Stauffer was concerned about the landscaping activity at other locations in the township, particularly Natorp’s.  Mr. Stauffer supplied some evidence that he was selling landscaping trees and feeder calves.  That activity would be allowed under agriculture.  Matt said at that time Staff didn’t want to pursue the use violation.  Staff insisted that the signage not be displayed.  Matt said Mr. Stauffer put the sign back up and Matt sent a letter telling him he was in violation.  At that time there were no complaints from surrounding residents.  Matt started to realize that there were very large piles of landscape materials on the property.

A week and a half later, a next door neighbor came in and filed a complaint concerning hours of noise from grinders, trucks coming and going, beeping from equipment backing up, and her view of piles of rusty pipe.  She came without any contact or insistence from the staff.  Matt visited the complainant’s house at her insistence and viewed the Stauffer property from her kitchen window, and outside from her land.   Matt then took photos shown here.  Mike Kean asked Matt if he had sent out violation notices to others.  Matt said yes, he had sent notices to 4 other locations in the township regarding the same sign violations as Mr. Stauffer. 

Following that visit he said there were findings.  Matt learned that the landscaping was much more intense than he originally thought that it was.  He said the raising of the feeder calves there and the tree grove were an allowed activities.  He said the landscaping use, compost, piles of mulch, use of heavy equipment are in violation of the Deerfield Township Zoning Resolution.  Matt said agriculture is an allowed use.  He said Home Occupations are allowed but must be  confined to the interior of the house.  Signs which are allowed in residential districts are school signs, churches, and accessory buildings and structures.  Signs advertising mulch and landscaping are not permitted.  Mr. Stauffer did remove a junk flat bed truck which had weeds growing around it.  Mr. Stauffer advertised in Landen Living, his services under the name of Stauffer Enterprises.  Matt said staff believes their actions are justified and warranted.  Matt asked the board for questions.

Mike Kean asked if there is any evidence that they started this enterprise / business prior to Deerfield’s local zoning.  Matt said he had seen none.  Matt said he checked some records of aerial photos from 1985, and then at five year intervals, at Warren County.  Greg Porta asked Matt if he looked up records from Warren County Zoning Code regarding this property prior to Deerfield Township Zoning.  Matt said he did not, and that it was not staff’s burden of proof to provide evidence that supported the Appellant’s claims.  Jim Klatte asked if the other operations in the general area have made suggested changes.  Matt said their signs have been removed.  Brian Leary asked if the signs are temporary.  Matt said they are permanent, in that staff first cited the owner for the sign in 2006.  Matt said the complainant said the activity has been going on in the last 5 – 8 years, but he said that is “hear say.”

Brian Leary asked if we have seen a case for this same property in the past at BZA.  Lois McKnight said this is the first time.

Proponent  Jeff Stauffer, 4145 Socialville-Fosters Road, said in looking at the staff findings, he felt the staff was trying to limit whatever he was trying to do there.  Mr. Stauffer said he told the staff about several other sign violations in the township.  Those were signs on Route 22 & 3, other locations on Socialville-Fosters Road, and Natorps and Evans.  He said he came to the Deerfield Township Trustee Meeting on April 15th.  He said no one at that meeting including Mr. Evers had an answer for him.  He reminded the board that there was a problem with Natorps causing dust to Deerfield Township residents on Sherman Terrace Drive.  Mr. Stauffer talked about a beauty shop on Snider Road with a sign. 

Mr. Stauffer said he went and talked to the neighbors about the situation and their complaint.  He put up a privacy fence to block her view of the landscaping materials and equipment.  He gave the history of the purchase of the property.  He explained how he was in business with his brother and how the business is organized.  He told the history of when he had public water put on the property.  Mr. Stauffer didn’t feel that anyone was willing to work with him.  He has 10 acres and the business is 600 feet off the street.  Mr. Stauffer said Mr. Clark has tried his best to give him straight answers.   

Mr. Stauffer again complained about other properties which continue to be in violation.  He described all of his heavy equipment that he uses in the business.  He also has a farm tractor, mower, and a disk.  Mike Kean asked him how long he has had the equipment.  Mr. Stauffer said he had a back hoe which was purchased in 1986.  He bought a bull dozer in 1987.  Mike Kean asked him if he had been using construction equip since that time.  Mr. Stauffer said in the beginning he just stored the equipment in his barns.  Mr. Kean asked how long he had been doing the mulch operation.  Mr. Stauffer said they have been doing the mulch operation since 2006.  He said in the Comprehensive Plan they have him zoned office.  Jim Klatte asked about what is at 3935 Socialville-Fosters Road, which is on the business card.  Mr. Stauffer said that is his brother’s property which is where the office is located.  It is 11 acres.  Mr. Stauffer said his property is where the equipment is kept.  He said his sons like to practice operating and learning to use the heavy equipment. 

Mike Kean asked him if he has more testimony.  Mr. Stauffer had some photos of other violations by Natorps, Evans, and others in the township.  Greg Porta asked how many trees he has.  He said he has maybe one acre of trees.  Greg Porta said if you had a nursery business there, the mulch business would be secondary to the agricultural use.  Brian Leary asked if he has sand stored.  He said he has 2 colors of mulch and compost from Wilkens farm.  Brian Leary said there is no sand, gravel, rocks, etc.  Mr. Stauffer said he has a gravel pile and pipes.  Jim Klatte asked him why he took the sign down and then put it back up.  Mr. Klatte said you did this on your own knowing that you had a sign violation.  Mr. Stauffer  said he couldn’t get any answers regarding Natorps, Evans, and others.  Jim Klatte asked him why is the sign down again.  He said he took it down after receiving the second letter.  Mr. Stauffer said he didn’t want to go to court.  Mike Kean asked him if he has had further discussion with the neighbors.  He said he continues to have a good relationship with them.  Mr. Stauffer said he thought the privacy fence he put up to block their view resolved that problem.  Mr. Stauffer said this decision affects him and his family more than anyone else.  He said his business is not hurting anyone else.   

Greg Porta asked him how he has addressed the noise problem.  Mr. Kean asked him how long each day is there noise.  Mr. Stauffer said that his son gets a cell phone call and his son loads up the mulch and delivers it.  He said much of the time it is for 1 ½ hours in the evening after supper.  Jack Stauffer, 4135 Socialville-Fosters Road, said they disconnected the beeping noise when the equipment backs up.  Mr. Stauffer asked for an addition to the zoning code to add a paragraph to the zoning code regarding allowing larger signs on residential lots with more acreage.    Mr. Stauffer continued to talk about other properties in the township that have violations.  Mike Kean closed the public portion of the meeting.

Concerned Citizens There were no concerned citizens to talk about this case.

Board Discussion:  Jim Klatte asked about the code allowances for accessory buildings on residential property.  Lois McKnight said we have a restriction on the number of accessories and the location of accessories on the property.  Greg Porta said he wants more than the testimony.  He said there should be receipts and photos to prove what Mr. Stauffer said.  Mr. Porta said Mr. Stauffer can’t base the facts on testimony that he has been doing these activities all these years.  Scott Phillips said what they have heard tonight is of limited value.  Mr. Phillips said this board has the job to decide whether staff misinterpreted or made an error in application of the code, and whether Mr. Stauffer’s evidence can prove that they had this use and that the use was valid under Warren County Zoning.   

Greg Porta said we must have proof that this was allowed under the county rules.  Scott Phillips said clearly there has been an expansion of a construction company.  Mr. Phillips said this board must make that decision.  Brian Leary said there are 4 businesses going on.  He said the sign issue is a separate issue.  Mike Kean said he is not appealing the sign violation.  Mike Kean said the agriculture business is allowed.  The others are not.  Greg Porta said when you move into a residential property do you assume that you can put equipment on it?  Bill Lantry said it is pretty clear that when he purchased the property, it was purchased for the purpose to store equipment in the barns.  Regarding the mulch business, that is what upset the neighbor.  Grinding wood is a very noisy business and the trucks also make noise. 

Greg Porta said the only way it would be a legal non-conformance would be if Warren County gave them legal non-conforming when they were under the county zoning.  Greg Porta said it is Mr. Stauffer’s burden to prove that to us.  If it was allowed by the county and never allowed by the township zoning then it is a legal non-conforming.  But if it was not allowed by the county then it is not legal to have those activities.  Mike Kean said it was all rural at that time.  Mr. Kean said every house along there has some type of business use.  He said there have been vegetable stands there, and wood sales.  Greg Porta said we must act on the complaint and if the violation was there 2 years or 20 years, it is still a violation.  Scott Phillips said he thought the zoning for the most part would carry over from the county and would be the same.  Brian Leary said it is unfortunate that the other sites that he has talked about are there but we are talking about this case, not those.  There are 4 businesses there.

Jim Klatte said you have the landscaping / mulch business, construction business that has equipment staged here, and you have the agriculture which is allowed.  Mr. Klatte said you can’t add to the business.  If the use had been allowed this could have been an appeal to a non-conforming use.  Greg Porta asked staff if this board were to uphold staff’s decision, could Mr. Stauffer come back to staff with the information that the county allowed that, could it then become a legal non-conforming use?  

Scott Phillips said if it is a non-conforming use, it is a non-conforming use, and Mr. Stauffer has asked this board to make that determination.  If you uphold staff’s decision, he could come back and prove that he was doing business in 1988 and it was allowed under Warren County.  Mike Kean said we could table this and postpone our decision.  Greg Porta said it all comes down to what the county had.  Scott Phillips said most likely the zoning at that time was the same and most likely would not allow businesses there.  Mike Kean said if the county didn’t enforce the rules we are using selective enforcement.  Scott Phillips said selective enforcement would be that you decide to go after someone for no reason.  Mr. Phillips said following up on a complaint is not selective enforcement.  Greg Porta said it states in the report that Matt Clark talked to Mr. Stauffer and then they received the complaint.  They didn’t overlook that, but the complaint brought more attention to the site.  Greg Porta said you want to take the person who complains at their word.  Mike Kean said it has been blown out of proportion.  Jim Klatte said it wasn’t blown out of proportion at all because Staff saw a violation.  Mike Kean said he would like to see this discussed so as to find a solution which is not as “black and white” as what we are discussing now.  Brian Leary said this is not a “judgment” call.  This is black and white.  Mr. Leary said this is a violation.

Scott Phillips said if they had gotten a conditional use in 1988, they would not have a problem.  They would have been within their rights.  Scott Phillips said they should show evidence that they were using the property prior to 1997, that it was being used for a construction business.  They should demonstrate what the WC code allowed at that time.  They must prove that the use was lawful when they started doing that.  Mr. Phillips asked if they were using the property just for storage of equipment or for the construction business.  Bill Lantry said Mr. Stauffer was advised that prohibited use was allowed at this time but after the neighbor complained it is too late.  Scott Phillips said they must investigate the complaint.  Jim Klatte said they must prove that they were allowed this use back then. 

Mike Kean said we should give the Stauffers time to assemble some documentation regarding the history of the use.  Scott Phillips said it is their burden and they need to come forward with their evidence.  Mr. Philips said to just table it.  Mike Kean said what evidence would they bring?  Scott Phillips said they must prove, (1) the use prior to 1997 was a construction business and (2) that the business operated there and business occurred longer than a two year period.  Jim Klatte asked if the meeting is continued, are they allowed to continue operating their business at this time.  There was no reason that they could not continue operations. 

Motion There was a motion by Mike Kean, seconded by James Klatte to continue Case 2008-226, to the next regularly scheduled meeting.

The motion was approved on the following vote:  AYES:  James Klatte, Michael Kean, Brian Leary, William Lantry, and Gregory Porta.  NOES:  None.  ABSTAIN: None.  ABSENT: James Rinehart.

Jim Klatte said this board has already covered the old and new business.

Mike Kean asked Mr. Stauffer if he understood what he should do.  Mr. Stauffer said it had something to do with non-compliance.  Scott Phillips said it is not the staff’s job to prove his case.  Mike Kean told him he must prove that having all of that equipment stored was allowed under Warren County Zoning.  Greg Porta told him information on zoning in 1988 should be available at Warren County.  Greg Porta said to ask them for their opinion.  Jim Klatte suggested to get their opinion in writing.  Greg Porta said it is a matter of checking to see if that equipment storage was legal.  Mr. Stauffer continued asking questions and he was told if he had questions to talk to staff.

Adjourn                                    Motion to adjourn by James Klatte, 2^nd by William Lantry

                                                Roll Call The vote was all yes.

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Mike Kean, Chairman                                                      Date                Greg Porta, Acting Secretary                   Date 

 BZA08/14/08.MIN