» Zoning

New York Court On Zoning Boards and Area Variance

Americaneer — Wed, 09 Mar 2011 16:38:53 +0000

Hat tip to Patricia E. Salkin, Professor, Government Law Center, Albany Law School for blogging about the Matter of Kenneth Russo, Appellant v. City of Albany Zoning Board et. al., Respondents (508996). According to New York Supreme Court, Appellate Division, Third Judicial Department:

The law is well settled that local zoning boards have broad discretion in considering applications for variances, and that judicial review is limited to determining whether the action taken by the board was

illegal,

arbitrary or

an abuse of discretion.

Therefore, a zoning board’s determination will not be disturbed if it has a rational basis and is supported by substantial evidence in the record. Furthermore, in determining whether to grant an area variance, a zoning board must weigh the benefit to the applicant against the detriment to the health, safety and welfare of the neighborhood or community if the variance is granted.

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Area Variance and Duncan v Middlefield

Americaneer — Mon, 07 Mar 2011 10:42:02 +0000

This is a follow up to the post titled Solon Planning Commission Inconsistent With Granting Zoning Variances. I was informed that McDonald’s USA LLC filed an administrative appeal in Cuyahoga County Court of Common Pleas against Solon City Council. We are a fast food nation (the site is adjacent to Pizza Hut, Arby’s, Burger King, Dunkin Donuts and Boston Market fast food businesses and other restaurants) and a country of law. McDonald’s is entitled to the appeal and the choice should be respected and welcomed. The appeal does not come as a surprise and I believe that Solon Planning Commission members may have pragmatically factored the above par chance of McDonald’s winning the appeal into their favorable ruling.

Types of Zoning Variance

Area Variance
Use Variance

The type of zoning variance appeals that usually come before a Planning Commission or Board of Zoning Appeals is that of Area Variance. This type of request is usually not controversial because the applicant does not request a change in the permitted use. The applicant’s simple request is for a less restrictive zoning requirement related to height, lot size, yard size, setback, accessory structures etc.

A request for Use Variance is a different ball game because the request is for a modification to the structure/classification of the zoning code and no city, town or village will/should take this lightly. In an use variance appeal, the applicant desires to use the property for an use that is prohibited by the zoning code.

Standard for Area Variance and Use Variance

The standard for area variance is practical difficulties. Practical difficulties exist whenever an area zoning requirement unreasonably deprives the property owner of a permitted use of the property. The standard for use variance is unnecessary hardship. If a property owner will not be able to viably use the property, unless granted a variance, unnecessary hardship may be occurring.

In a letter to members of Solon Planning Commission and Mayor Susan Drucker, Bruce Rinker, attorney for McDonald’s presents several interesting points. Here is a salient one:

City officials and McDonald’s are working with the constitutional framework which treats the permitting process as administrative and not legislative. In other words, the task of both the Planning Commission and, thereafter, the Council is not to legislate a new law but to administer the existing law following constitutional principles. Law encompasses local, state and federal. Objectivity is essential. By prescribing the zoning classification of this site, by controlling the public thoroughfares and the platting of lots abutting them, by historically, administering laws for all of the adjacent properties that have resulted in the current landscape, Solon has by legislation predetermined this landscape. The legal task, now is to administer rationally.

Here is one more:

While the practical difficulties present “special considerations”, they may not be treated by public officials as the applicant’s “request for favors“.

“Administrative power and discretion may be and usually are vested in designated departments, boards or officials or in the municipal legislative body itself to grant, deny or revoke building permits. However the authority vested in them cannot be a arbitrary decision in each case, uncontrolled by any general rule. In other words, the discretion must be made subject to a standard or rule to operate uniformly in all cases…..9 McQuillan on Municipal Corporations (3 ed), 484, 26.203

Duncan v. Middlefield

In Ohio, a set of 7 guidelines are prescribed for officials and courts to employ in fairly and equitably considering how to gauge practical difficulties. These are informally referred to as the Duncan Criteria or Duncan Factors and are enshrined in Duncan v. Middlefield (1986), 23 Ohio St. 3d 83:

Whether the property in question will yield a reasonable return or whether there can be beneficial use of the property without the variance;
Whether the variance is substantial;
Whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance;
Whether the variance would adversely affect the delivery of governmental services;
Whether the property owner purchased the property with knowledge of the zoning restriction;
Whether the property owner’s predicament feasibly can be obviated through some method other than a variance; and
Whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance.

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Solon Planning Commission Inconsistent With Granting Zoning Variances

Americaneer — Sat, 18 Dec 2010 12:06:27 +0000

Solon Zoning Ordinance Section 1288.02 Item 2 T

Recently, McDonald’s Corporation approached City of Solon Planning Commission with a proposed project at the intersection of SOM Center Road and Aurora Road and requested a number of zoning variances. The project features included a $2 million investment, a 4,000-square-foot building and a 20-year commitment. Solon’s Zoning Ordinance, required that at least 81 parking spaces be provided to serve the proposed restaurant use. As only 36 parking spaces were provided on the proposal, a 45 space parking variance was requested .

The owner of the property, Visconsi Solon Land Company Limited was agreeable to dedicating 13 feet of their property for a potential future right turn land which would have improved the the congested, high traffic volume intersection. The high traffic volume is considered more profitable to businesses and makes this location desirable. This request was approved by a 3-2 vote after an interesting discussion that involved among others, Kevin Westbrooks of URS and Michael Hobbs of GPD Group. Here is an extract from the minutes of November 9th meeting of the Solon Planning Commission

- – -

Question 7: Explain how the number of parking spaces on the site is adequate for McDonald’s operation and why the parking variance should be approved.

Mike Hobbs of GPD Group: He explained the approach used for this issue was to review the ITE (Institute of Traffic Engineers) manuals that address the generation of parking requirements as well as the trip generation manual. In accordance with the parking generation manual, 31 spaces are estimated to be occupied during the peak hours based on the proposed 75 seats for the restaurant. Mr. Hobbs said the existing McDonald’s has seating to accommodate 110 patrons and, using the same calculation methods, equates to 55 parking spaces. He said based on observations from the existing site during a busy lunch hour, there were approximately 40 patrons inside the restaurant. The majority of the patrons ordered items for carry out. Therefore, it is believed that with the addition of a drive-through for the new restaurant, the majority of patrons would be using the drive-through.

Mr. Mike Hobbs said it is also believed, based on 65 to 75 percent of transactions occurring at the drive-through window and the ITE trip generation computations, that during the busiest hours, the proposed amount of parking spaces should satisfy the projected demand.

Kevin Westbrooks of URS: He said the calculations used were taken from standard traffic engineering manuals and he agreed with Mr. Hobbs. Mr. Westbrooks believes, in general, parking requirements are excessive and he feels that future requirements will call for a reduction in parking. However, the request is for a significant parking variance which is for approximately 40 percent of what is required.

Mr. Westbrooks said the computations indicate there should be just enough parking. He believes the design should not be only for the capacity but a little extra as well. He reviewed similar McDonald’s sites on Route 18 in the Akron/Bath area which also have double drive-thru lanes. Mr. Westbrooks said it was important to review McDonald’s with the double drive-through lanes because it is believed that the focus for the future is to encourage drive-through traffic. He said one of the sites had 48 parking spaces available. He viewed it during the lunch rush and the most parking spaces utilized was 26. Mr. Westbrooks said there was much activity in the drive-through lanes.

Mr. Westbrooks said the second McDonald’s he reviewed was in Bath and it had 58 parking spaces available and 36 were occupied. The dual drive-through lanes were very busy. In addition, this facility had an indoor playground and there were many children using it. He believes if there was no playground at this location, the number of occupied parking spaces would drop significantly.

Mr. Westbrooks said the calculations Mr. Hobbs provided indicates there will be enough parking spaces at the proposed location. Mr. Westbrooks believes his research indicates the parking should be adequate.

Mr. Westbrooks addressed a previous request for a parking space variance in a strip mall area located on Aurora Road that he did not recommend for approval. Although this was a smaller variance, he made the determination based on the calculations for capacity for that location. The decision to grant the parking space variance would have negatively impacted the other businesses in that strip. Whereas, the decision to grant the parking space variance for the proposed McDonald’s will only directly affect McDonald’s.

Mr. Mazur said an email with the recommended space and parking requirements for McDonald’s restaurants from McDonald’s Corporation was forwarded to the Commission. He said the Corporation plan recommended approximately 70 parking spaces, which is much less than the proposed plan.

Councilwoman Richmond said at the previous meeting, employees using parking spaces was discussed. It was determined that many of the employees walk to work or carpool and many take the bus. However, this could change in the future.

Mr. Westbrooks said the statistics they use to determine the numbers are based on national averages and include the employees.

Ms. Meloney Karas, McDonald’s franchisee, was present and said historically for the last 13 years, her employees have been local residents or take the bus to work.

In response to Councilwoman Richmond’s question regarding snow removal, Ms. Melony Karas said the current site lacks storage area and she has the snow hauled away. If necessary, she will have the same arrangement made for the new site.

- – -

Thomas Jewell‘s article in the Sun News, titled Proposed New McDonald’s placed on hold in Solon, refers to the inconsistency in City of Solon’s dealings:

Robert Paulson, former Solon Mayor, pointed to “inconsistency” in the city’s dealings with different people and entities. He cited a previous requirement for Carquest to provide

6 parking spaces when it wanted to add a mezzanine for storage, and

the denial of a 12-space parking variance for a Chinese carry-out — next to Solon’s existing McDonald’s.

According to Richard Zimmerman of ZZ Design Inc in Solon:

Recently a 14 parking space variance was denied to an Asian restaurant proposed for a location on Aurora Road within only 1/4 mile of this site. How can a 14 parking space variance be disapproved there, yet a 45 parking space variance granted here, where the acknowledged consumer activity, parking demand and traffic will be far greater? Granting this 45 parking space variance suggests not only inconsistency and favoritism, but also sets a disastrous precedent for all variance requests of the future. How much credibility will our own zoning code regulations be left with?

By Richard Zimmerman of ZZ Design Inc.

The people of Solon Ohio spoke; according to one letter/email count survey presented by a Solon resident at the City Council meeting, 67 Solon residents indicated their disapproval for the proposed project and 5 Solon residents were for it. This issue of inconsistency was also raised by one of the Solon Council member.

I don’t think anyone sets out to be inconsistent. What’s a municipal government supposed to do when the choice is between providing consistency in the public process and the desire to advance an attractive (depending on the definition of attractive) project to fruition? Should a good project be sacrificed at the altar of consistency? Should pragmatism be placed on the back burner to provide consistency in the public process? Providing consistency in decision making at government bodies, where each case is unique, without a formal mechanism, is complex but is probably doable. It is conceivable that a brief and informal or a detailed and formal precedent study is usually conducted by city staff persons, on a case by case basis. Members of local government bodies are appointed by the Mayor and they may be, consciously or unconsciously, obligated to support the Mayor’s line of thinking. Establishing a mechanism for providing consistency in decision making at Planning Commissions and Zoning Boards may be desirable but it could also pan out to be a double edged sword.

Director of Solon Planning Department Robert Frankland stated that Solon’s Master Plan is not law and Solon’s zoning code is important. The proposed site plan received a clear thumbs down (one Solon Councilman voted Yes!) from the Solon City Council despite the thoroughly excellent presentation by Bruce Rinker and the opinion letter referring to the Duncan v Middlefield case (this will be a future post). The parking space variance was shot down 4-2. This was, arguably, the most interesting project deliberated upon by Solon Planning Commission and Solon City Council. The fat lady hasn’t sung yet.

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After effects of mortgage fraud in Thornbury and Preserve of Solon

Americaneer — Tue, 18 May 2010 22:38:00 +0000

Thornbury and Preserve of Solon Ohio

It dates back to September 2007, when Cuyahoga County prosecutor, Bill Mason’s office did a press release about four morgage fraud cases in Solon. These cases involved the following Solon properties:

35895 Sedge Circle in Preserve Subdivision, Solon
6749 Winston Lane in Thornbury Subdivision, Solon
35532 Nightshade Lane in Preserve Subdivision, Solon
38710 Flanders Drive in Thornbury Subdivision, Solon

Recently, Thornbury subdivision residents spoke in support of the proposed Rental Occupancy Permit before Solon’s Planning Commission. The residents cited their observations and experiences with 38710 Flanders Drive before the commission.

As a background for 38710 Flanders Drive, Bill Mason’s press release states that,

Ogbonnaya Edeh, 49, of Cleveland, fraudulently obtained an $850,000 loan from New Century Mortgage Company for 38710 Flanders Drive. He never made a down payment, never saw the inside of the house before the purchase, and never lived in it. Edeh was employed as a local cab driver, but he falsely stated he made $150,000 as a structural engineer for Classic Tango Engineering, and Phillip Taylor, the owner of that company, falsely verified Edeh’s employment and income. Edeh received $31,000 for this scam. Brian Chenoweth, president of Widdershin One, Inc., and Ike Osuji, a middle man, who posed as a buyer, were also indicted for their involvement in this scheme. Edeh was a “straw buyer” in this scheme that involved other individuals, including Stephen Holman and Jeffrey Brown of Buckeye Lending, Inc. After Edeh purchased this house, Holman and Brown leased the home to a tenant, who signed the lease with Brown’s company, Marketing Land and Concrete, LLC. That tenant made rent payments that were intended to pay the new mortgage and these payments counted toward buying the home. However, the tenant he lost his $6,000 initial down payment and $22,600 in lease payments before realizing it was a scam. Neither Brown nor Holman used these payments to pay the mortgage obligation to New Century. Each defendant was indicted on several theft and forgery related charges, which range in prison time from one to five years. The house is now in foreclosure.

Cuyahoga County Auditor’s records indicate that this property is in the name of Ogbonnaya Edeh and the taxes are being paid. The residents indicated that according to two Solon Police Department officers this property may have been used as a meth lab. Automobiles with license plates from several states including New Mexico were observed at this property. Loading and unloading of large plastic containers was observed by the residents. The residents felt that this 5 bedroom, 3 bathroom, 4900 square feet, 3 garage residential property was being used by four individual groups as a “hotel”. Thornbury subdivision is zoned as R-1-D (Single Family, 1 Acre).

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Jesus is the reason for the season

Americaneer — Tue, 12 Jan 2010 23:05:12 +0000

: Christmas 2009

Something is not right when people have to informed through a sign that Christmas is about Jesus Christ and not shopping.

Municipal zoning or other rules may permit installation of non commercial opinion signs if the signs meet the size, color, location and other prescribed criteria. These yard signs are a tribute to our First Amendment.

However, some yard signs or commercial electronic message boards, in particular, that are becoming too common on higher speed roadways, are likely to be cause of distraction to some iPhone slinging motorists and may lead to traffic crashes.

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City of Solon Zoning Code Amendment-Workmanline manner

Americaneer — Sun, 01 Nov 2009 13:03:20 +0000

Solon Ohio

City of Solon is working on amending its zoning code to include a workmanlike manner provision. According to Robert Frankland, City of Solon Planning Director, the current edition of the Ohio Building Code does not require that construction projects be built at a minimum level of quality and appearance. While Ohio Building Code does require that the structures be sound, it does not require them to be built in a workmanlike manner.

As an example Robert Frankland displayed a picture of a perimeter fence in Councilman Stolarsky’s ward that was not built in a workmanlike manner. The fence had several horizontal and vertical panels which were not parallel.

The proposed amendment to Chapter 1261 of Solon Zoning Code will define workmanlike as executed in a skilled manner; e.g. generally plumb, leve, square, in line, flush, free from damaged or inconsistent materials, and without marring adjacent work.

The proposed amendment to Section 1288.02-Item 9 of Solon Zoning Code (Prohibition of Specific Property Conditions) will provide that construction should be performed in a quality workmanlike manner and shall not pose to health or safety threat, nuisance, or a diminution of property values in the area in which said structure is located due to the use of substandard construction methods, materials, or finishes as determined by the Chief Building Official of the City of Solon.

If these zoning code amendments are approved by Solon City Council, they may mean that failure to perform in a workmanlike manner may breach applicable regulations – even when there is no written contract ? These amendments may not make the contractor responsible for every building quality issue. The complaining party may have to provide evidence to define the standard of care and skill that would be exercised by and expected of a skilled contractor performing the same construction as the non-performing contractor. The evidence could then show that the non-performing contractor failed to meet the defined construction industry standards.

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Unhappy with Kathleen Falk and Wisconsin DOT

Americaneer — Mon, 23 Feb 2009 01:26:40 +0000

Screwed by Katherine Falk and Wisconsin Department of Transporation!

“Screwed by Falk n DOT. If Tax’s were income we would all be rich. This land is government land. This land is government land. This land was made for Falk and government. Think about it”, says the writing on the walls.

A few months after I took this picture, I noted that this structure was repainted, probably to make the comments go away.

I reckon the issue was eminent domain and the property owner was not pleased with the governmental efforts to take over the property.

I am fairly certain that resorting to this kind of protest, in some other countries, will very likely get you hurt.

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Signature of Solon Golf Community, Solon, Ohio-A Review

Americaneer — Wed, 07 Jan 2009 02:55:10 +0000

A mammoth in Signature of Solon, Solon Ohio

A yellow sign in front of this house at 7381 Vahalla Drive, in Signature of Solon in Solon, Ohio had the website link to Williams and Williams, a real estate auctioneer. The estimated value of this property according to zillow.com is $727,000. The sale is on January 22, 2009 at 3 PM according to the auctioneer website. Nominal opening bid was $100,000. There were several homes for sale signs in Signature of Solon at this time and this was surprising.

Signature of Solon is near the intersection of Aurora Road and Pettibone Road. Both these roads are two lane, physically undivided roads. Aurora Road (11, 400+ vehicles/day, year unknown) has higher traffic volume than Pettibone Road (1,900 vehicles/day, year unknown).

Some homes in the pretentious Signature of Solon subdivision (Zoned R-1-F Golf Course Community) are likely to have one or more these features:

Too voluminous for the family and lot size. Have you ever seen a 500 square feet walk-in closet?
Somewhat similar looking exteriors despite the multiple roof lines.
Awful 2 story/cathedral/elevator shaft living room ceilings typically seen in McMansions.
Sub par single flight staircases with poor riser and tread dimensions.
Few trees in the front yard.
Large sunlight inviting windows that also degrade the appearance of living room furniture and electronics.
Cul-de-sacs.
Good construction quality.
Good construction material quality.
Highly educated neighbors.