PZ - August 1st 2016
PLANNING AND ZONING COMMISSION
August 1, 2016
The Planning and Zoning Commission met in regular session on Mon, Aug 1, 2016 at 7:00 p.m. at the Mayfield Village Civic Center, Civic Hall. Chairman Syracuse presided.
Present: Mr. Vetus Syracuse (Chairman), Dr. Sue McGrath (Chairman Pro-Tem), Mr. Bill Marquardt, Mr. Garry Regan, Mr. Paul Fikaris, and Mr. David Hoehnen
Also Present: Mr. Joseph Diemert (Law Director), Mr. John Marrelli (Building Commissioner), and Ms. Deborah Garbo (Secretary)
Absent: Mayor Bodnar and Mr. Tom Cappello (Village Engineer)
Consideration of Meeting Minutes: July 11, 2016
Mr. Regan, seconded by Dr. McGrath made a motion to approve the minutes of July 11, 2016.
Ayes: Dr. McGrath, Mr. Marquardt, Mr. Regan, Mr. Fikaris
Abstain: Mr. Syracuse, Mr. Hoehnen
Motion Carried. Minutes Approved As Written.
- Rezoning; Residential Single/Family to Office/Lab
Georgian Medical Arts, LLC
730 SOM Ctr. Rd.
TMA Architects, Inc.
Chairman Syracuse called the regular meeting of the Planning & Zoning Commission to order. At this time, I’d like to entertain a motion to recommend the proposed rezoning.
Mr. Regan, seconded by Mr. Hoehnen made a motion to recommend the proposed Rezoning from Residential Single/Family to Office/Lab for Dr. Moyal at 730 SOM Ctr Rd as proposed.
Chairman Syracuse asked, any discussion?
Mr. Regan said, I have a problem recommending this type of rezoning when we know that there is a conceptual plan in front of us that addresses something else. I’ve heard Mark say the first step is the rezoning from residential to office/lab. There’s a transparency issue that I have a problem with. Nothing against you Sir. I think you have lovely plans and I think it should be considered. I do not approve this process of asking the voters to rezone to an existing classification knowing full well that the outcome will be a special use permit to make something fit. The alternative would be to create a new zoning class, ask the voters to approve the class, then approve this particular project.
Ken Fisher, L.P.A.
Ken Fisher states, thank you Mr. Chairman, my name is Ken Fisher, I’m here this evening on behalf of the property owner Dr. Moyal. Also present is Tim Mulle our Project Architect. The request before the Commission tonight is to rezone from the existing single family use which is not an economically viable use for the subject property, to office lab consistent with the medical office building that exists on the adjacent parcel also owned by Dr. Moyal. In terms of the intended use, yes, it is an Assisted Living facility. At the request of the Administration, I want to be clear that that is the intention, although there are other possible uses within the office/ lab Use District. In order to go forward with Assisted Living based upon the amendment of Section 12 of the Charter, the Board of Zoning Appeals does have “Use” variance authority. That would be the process. We’ve been very transparent in what the intentions are.
Governor’s Village exists in the Village, there was mention in the workshop minutes in reference to run reports. That was approved through a law suit which is not our intention. We’ve worked cooperatively with Village Officials and will continue to, including your very fine Law Director in terms of the process. If we’re fortunate enough to get the recommendation tonight, it’ll go to Council on Aug 15th. If Council approves the rezoning, it’ll go on the ballot at some future time. The deadline unfortunately for the Nov 8th Election will have passed, it’s Aug 10th. It wouldn’t go on at the earliest until sometime in 2017. At that point in time, if we’re fortunate enough to get an affirmative vote from the Electorate here in Mayfield Village, there’d be a completely new process with Mr. Marrelli, Mr. Diemert, and all the various Officials in the Village which would include a “Use” variance application, a Development Agreement, and exhaustive review of plans including drainage & zoning issues.
This is just the beginning of what we hope to be a successful process. There is no such use classification for Assisted Living. That’s up to the Village. Because there isn’t, the process we’ve followed is proper and within both the Codified Ordinances of the Village and the Charter. I know this gets a little bit convoluted and I don’t mean to make it that way for anybody.
My client cannot develop the property as presently zoned; single family residential. It’s not a single family residential site. The question then becomes from the property owner’s perspective in developing his land, what would be a reasonable use of his property? Again, the presentation and application is based upon office/lab which is the existing use on the contiguous parcel also owned by the same individuals. We’re asking for that recommendation as the first step in what we hope to be a successful process that at the earliest would not be completed until sometime very late in 2017.
We can’t use the property as presently zoned. The question is, what should the property be rezoned to? We believe office/lab consistent again with the existing use of the contiguous parcel. We’ve gone through the plans. Dr. Moyal is here. Dr. Moyal is a known quantity, a very successful Internist, a member of the Mayfield Village community for a lot of years.
Mr. Fisher states, we’re here to answer any questions. In terms of the process, this is just the first step. We’re not asking for plan approval. We’re not asking for a “Use” variance approval. We’re asking for a recommendation to rezone the property to a use that is lawful and constitutional and economically feasible.
Mr. Regan said, if this gets rezoned to office/lab, then there would be a request made for a “Use” variance. It gets approval by P & Z & Council ultimately. But, the voters didn’t vote on that. The voters voted on the office/lab, that’s it, that’s where it stops.
Joseph Diemert, Law Director
Mr. Diemert states, yes and no. As you know the new Charter amendment provides for that “Use” variance which in November the voters adopted. Council would have to approve your recommendation. They could vote against the recommendation, but they need a two-thirds vote to get it to the voters. The voters will vote on the rezoning as is proposed to you now. What kind of publications, advertisements or public relations literature will probably be explaining to the voters the intended use down the road. That would probably occur by way of the property owner or people who come and ask questions during the election process.
Once the vote removing the zoning comes in then the application goes through the Charter process which is pretty extensive. It requires a public hearing notice to various property owners, the Board of Zoning Appeals, Planning Commission and all of Council, all have to come to an agreement on the plan for the “Use” variance that is being requested. That’s when the input on the plan would become most involved.
Mr. Diemert states, there’s still a reduced option for the voters to still have a referendum on this if there was opposition significant enough, a reduced number for circulating petitions to object to Council’s approval of any “Use” variance that the Board of Zoning Appeals would recommend. At that point, the voters could have another crack at denying or rejecting the actual use of the variance that passed. So there’s a pretty thorough review process that the Charter now provides.
Chairman Syracuse said Garry, your hesitation seems to be the fact that what would go to the voters on the ballot would be a rezoning just to office/lab. It wouldn’t include any sort of public agreement pertaining to the intended use down the road and the approval they need to get for a “Use” variance. Joe, what other options are there if this is not recommended ultimately by Council?
Mr. Diemert replied, the only method left would be an initiative petition by the property owner requesting that there be an issue placed on the ballot for rezoning. That would be the administrative remedy that would be available. Litigation would of course be the other. As Mr. Fisher alluded to the Planning Commission, the existing zoning is not reasonable for the property the way that it’s located, situated in our Village. Then it would be up to the Court of Common Pleas, the Court of Appeals, the Supreme Court to determine whether or not our zoning is valid. All zoning legislation is presumed to be constitutional, valid and enforceable until the court determines otherwise.
- Creating A New Zoning District
Chairman Syracuse asked about the option of the property owner applying for rezoning to a new zoning classification.
Mr. Diemert replied, there’s always the possibility that Council could amend our zoning code to provide for a use district that accommodates Assisted Living. Such a district could be recommended by Planning Commission and it could be done on its own by Council if they were so inclined to create a new zoning district. That would not rezone this property. It would still need to be put into a situation where it could be rezoned to Assisted Living by the voters. Even if we create a new zoning district, this property wouldn’t be qualified for that use until it was rezoned to that use.
Mr. Hoehnen asked, could a new zoning district be taken up by initiative petition as well?
Mr. Diemert replied, yes.
Mr. Regan said, seeing as much as we’ve seen about the intent, which is a good intent, I have no problem with the intent. Is it possible to tie an affirmative recommendation that says with the intention that an Assisted Living facility would be constructed? I want it to be crystal clear to the voters.
Mr. Diemert replied, you don’t need to tie the two together. You could make a separate motion making your recommendation that Council consider creating a new zoning district along with a separate vote on recommending or not recommending this rezoning proposal. Any recommendation from Planning is contemplated by our Charter. Indeed, that’s the purpose of the Planning Commission to make such recommendations based upon these variances.
Mr. Fikaris asked, if approved by Council to go on the ballot, is there a required Public Hearing?
Mr. Diemert replied, yes. Our Charter provides for required Public Hearings on this rezoning. The ultimate intended use could be discussed at those Public Hearings.
Mr. Fikaris states, I echo Garry’s concerns. We’re voting on a recommendation. The recommendation is, do I vouch for this project. If you say I vouch for this and there’s these clarity issues that we can’t answer about whether this will be built. If the case then is, to be economically viable, I want to rezone this from residential to medical/office. I know it’s a step, but still there’s got to be that next thing to say this is what I’m going to build. So when somebody comes up to me and asks; did you vouch for this, and I vouched for an Assisted Living facility, I vouched for a medical office building, I’m vouching for both. Usually we have a chance to give our affirmative on a solid project. The nature of this prevents that. It opens up a lot of clarity issues to say, how could you vouch for that when you don’t know what’s going to happen, you don’t know about this variable. Let’s say this project was allowed, there’s still issues I have with the project itself, i.e. the gas well, the proximity to SOM, the height. If that’s what we’re going on, to turn this economically non-viable parcel into a viable one, there’s that X factor to say would you recommend that? I think it’s a great intent, there’s just a lot of things to iron out. Personally, to vouch for this and having that responsibility, a thousand things could happen.
Chairman Syracuse said, as you pointed out, several of the concerns you have are from a planning perspective, the proximity to SOM, the distance from the existing gas well, as well as the height of the building. That could be considered when taking your vote.
Mr. Regan said, I have no doubt that the Doctor wants to build an Assisted Living facility. I’d like to give the Citizens of the village the chance to have their voice. The problem I have is we’re going to them, asking them to do a rezoning on something that’s going to wind up being the decision of 12 people between ourselves and Council, then we’ll approve a “Use” variance. Probably during the process there’ll be all those pretty diagrams. Some of the people that pay attention will see them, others will not. I think, let’s put together a new zoning classification.
Mr. Diemert states, maybe I could help you Garry with what you’re struggling with. We could never have a zoning map that has each property zoned to a specific use. We only have zoning districts, encompassing many acres. We could never ever under any circumstance rezone land to a specific use. It’s only a general use category. We have to trust that the process later on is not going to let one of those specific uses in the general use categories be subjectionable or inconsistent with the harmony of our Village. Even if somebody says let’s rezone some commercial land to residential, you’d have the same quandary because maybe you want it to be a residential premise that has 3000 sq. ft instead of 1500. Or maybe you want to have a house with 3 stories instead of 2. This board doesn’t get involved in that approval process. You’re just saying, would that property be better suited to be in a zoning district office/lab or is better suited for residential from a planning purpose for the future of our Village. As to the specific type of use, the voters can’t get into that either. We can’t have referendum on every particular use somebody wants to have. John probably gets 150 applications for different uses within each zoning category every month. As a result, he’s got to decipher whether or not it fits all the rest of our codes in the harmony of our Village.
Mr. Regan asked, is an Assisted Living a residential facility?
Mr. Diemert replied, residential sure, but not within the definition of our single residential zoning district.
Mr. Regan said, I want to be clear. People vote on office/lab. Office/lab is usually 9-5 or 8-4. They don’t increase the population. There’s more to it than that. We’ve gone so far with looking at plans, schematics and a concept. I feel very uncomfortable going from residential to office/lab then to a “Use” variance.
Dr. McGrath states, other communities have recently put in Assisted Living facilities. I know Mentor is in the process of putting one in. Along the way they’ve created a zoning, I think it’s called Institutional Living. These things exist, this zoning category. We’re not trying to reinvent the wheel. We’re saying this would be an option. We don’t have it, but couldn’t we have it?
Mr. Marrelli replied, it sure would make life easier if we did.
Chairman Syracuse states again, the report that Council will see that they’ll vote on will be based on our vote tonight and the minutes from our meeting. That’s going to be what constitutes our report to Council. The motion right now on the table is to recommend the proposed rezoning from residential single family to office/lab. If you want, we could entertain another motion to have Council consider a new zoning classification for Assisted Living.
Ken Fisher, L.P.A.
Mr. Fisher states, I’ll try to be brief. I believe in 2003 Dr. Moyal originally came to the Planning Commission with plans which I had the opportunity to view when I was first retained. Mayor Rinker was the Mayor, Joe was the Law Director and at that point in time the plans did not go forward. This was before Governor’s Place was even approved. When I was retained, Dr. Moyal & I came back. We began meeting with Village Officials again. There was discussion about putting in a new zoning district. I’m not speaking for anybody other than my client, but the information that was communicated was that Mayor Rinker and the Administration were not at this present time interested in creating a new use district to allow Assisted Living. Those are policy decisions. Not only do you create the new zoning, but then you have to determine where in the Village based on your Master Plan would be an appropriate use for an Assisted Living.
That aside, when we went forward in March, I submitted to the Clerk of Council requesting the rezoning from the single family residential to the office/lab with the process as it presently exists in the Village. That process would be to rezone from the recommendation of Planning Commission, Public Hearing with Council, vote of the Electorate, then based upon the amendment to the Charter, a “Use” variance consideration by the Board of Zoning Appeals. If all that happens, it’s back to Planning Commission with plans, a Development Agreement with Joe, and those Agreements are very thorough, the Village is completely protected, and everything gets vetted. I understand the consternation, I understand the hesitation. Again, the process is the process that exists in the Village. That is what we are following.
Again, I understand very well that perhaps there’s some thought that new zoning should be created, but that’s not a policy decision I believe, at least from my understanding that is available. It doesn’t mean it couldn’t be available, but there’s a lot of considerations that go into creating new zoning as opposed to apply on a particular basis for what’s known as a “Use” variance from the Board of Zoning Appeals. Perhaps that might be in the better interest of the Village.
Dr. Moyal has had this vision going back 15 years now. We were requested to update plans, we went to that expense, we brought in a Project Architect. We showed you exactly what the vision is, exactly what the structures, at least schematically would look like, subject to what would be extensive plan review at some point in the future if we’re fortunate enough not only from the vote of the Electorate for the rezoning from the single family residential to the office/lab but also a “Use” variance from the Board of Zoning Appeals.
I know this is a little bit difficult. I know it isn’t perhaps what you would normally do in terms of recommendation, but it’s the process as it exists. We’ve been completely transparent, completely upfront in explaining what the intended use of the front parcel is which we believe is consistent with the existing medical office use for the University Hospital medical office building which is a pillar in the community. The patients that Dr. Moyal and his partner have as well as the other physicians are a large part of the folks that would be living in the Assisted Living facility which makes it really convenient for them to stay in the Village near all the amenities that Mayfield Village offers.
Mr. Fisher concludes, there isn’t a whole lot more we could say but we’re willing to in terms of any other standing written or otherwise to satisfy Planning Commission, Council, and the Administration as to the intent.
Dr. McGrath said, I think you’ve made it pretty clear that you don’t want the idea of a new category of-
Mr. Fisher interrupts, Mam, that’s not me saying that. That’s the information that’s been communicated to me going back to the Mayor Rinker Administration, that the Village is not interested in implementing a new zoning use classification for Assisted Living. That’s why we’re here. That’s why we’re requesting this process with rezoning, vote of the Electorate, “Use” variance which now the Board of Zoning Appeals has the jurisdiction over based upon when the Charter was amended in November, then it would go back to Planning Commission. It isn’t that we don’t want it, it’s not available.
Mr. Diemert said if I might add, having a new zoning district is not as simple a process as it sounds. We’d have to hire a Planning Consultant to go through the process of figuring out what kind of zoning district requirements, minimum parking, size of rooms, setback, elevations, utilities, infrastructure, etc. Once all of that is agreed upon by P & Z, Building & Council, then we have to decide what properties we are going to want to have rezoned for that. That’s another arduous process because you can’t just have a district and have nothing rezoned to it. We’d have to pick out parcels of properties that we felt would be better suited for that particular use. Once you do that, you are creating non-conforming uses if they already have structures on them or if they’re residential and have a home on them they now are non-conforming.
It was that chain of thought process I think the Administrations have been somewhat reluctant to go down that path and rather have individual control over a parcel where somebody wants to place that use. Control that one instance where it will be built, not pick many parcels for it to be used. Then on a case by case basis, either approve or reject it and have some control over the type of structure and all of that related to the parcel.
Mr. Regan said Joe, to me that makes perfect sense. I’ve heard these gentlemen loud and clear, they’re not trying to pull the wool over anybody’s eyes and they’re stellar in the community. But, how do we ensure when we recommend to Council that it go on the ballot to go from residential to office/lab, that the Electorate fully understands between P & Z and Council and whoever else gets their stamp of approval, that less than the full vote of the community is voting to approve finally that Assisted Living.
Mr. Diemert replied, here is how we could protect it. Your report is going to include the minutes as Vetus has indicated and everyone’s talking about only one use and that will be your report. You’re not making the final decision on putting it on the ballot, Council is making the final decision. They could put certain things in there that conditioned upon the fact that we’ve been told this is the use that will ultimately be sought, we agree to put this on the ballot to the voters. After the voters approve it and they come in and want to put a gambling casino in there because it fits under office/lab, we’re going to reject it because they misrepresented the project. We’ll be able to tie their hands on that.
Chairman Syracuse said, the extra hurdle that has to be jumped over in order to obtain the use that they’re looking for is this “Use” variance.
Mr. Diemert said, now there’s where the conditions could be attached.
Chairman Syracuse said, Mr. Fikaris and I were both on the Charter Review Commission. That Commission recommended that amendment to the Charter. That permits “Use” variances to get approved by the Board of Zoning Appeals subject to Council approval. That changes the use for that parcel and that runs with the land, it becomes permanent. There was a restriction in the Charter amendment that prevented residential parcels from seeking a “Use” variance. That’s why they’re not seeking a “Use” variance at this time. They would need to have it rezoned to something other than residential first before they could do that, just as a procedural matter, so that all Commission Members understand why they’re doing this.
Mr. Fikaris, in playing devil’s advocate points out another scenario once it gets voted to office/lab. What happens if the next step is never taken? Now that parcel is infinitely more valuable which will play into the development plan. If this Assisted Living facility didn’t get built there, you sold the parcel or some other circumstance, eventually someone comes in and puts up an office building. That’s the missing link. There’s no guarantee aside from your good name. We trust you, it just isn’t there. I know this is just our recommendation to another group but that could be the inevitability, even if it’s not the intent. Now they have the piece of property, they don’t have to do the next step.
Mr. Regan said, if somebody had a different vision than Dr. Moyal and didn’t like our zoning, they’d sue us.
Mr. Diemert said, that’s always a possibility. Again, when Council approves putting it on the ballot I think one of the conditions they might be able to put in the legislation is that if there’s no Development Agreement entered into within one year for the use that’s been represented for the rezoning, that it would revert back to residential.
Mr. Fisher said, we’re in agreement with that, just so there’s no dispute. I understand what you’re saying. It’s a valid issue. The way around that would be a Development Agreement.
Mr. Diemert states, and those are enforceable.
Mr. Fisher said, we’re coming here all hands on the table, following the procedures that exist in the Village, following the direction that we’ve received from the Administration coming up with new plans from 2003, updating them, reducing the number of units. We understand there are planning issues. Those will be dealt with at a later point if we’re fortunate enough to not only get an affirmative recommendation from Planning Commission but a vote from Council to be placed on the ballot sometime in 2017. If we’re fortunate enough to get the majority of the Electorate to support the rezoning then it goes back to the Board of Zoning Appeals for a “Use” variance under the Charter change, then it would come back to the Planning Commission with actual plans. There’s a whole lot of process that protects you as a Village Official and Members of the Planning Commission. Not to mention what Joe says about a Development Agreement that would hold our feet to the fire legally. We’re going to follow the process. We’re going to abide by whatever the directions are that we receive from Administration and Administration Officials.
Chairman Syracuse asked Mr. Diemert if the Development Agreement is something that could go on the ballot, if the voter approval could be subject to the Development Agreement.
Mr. Diemert replied, the Development Agreement wouldn’t go on the ballot. If Council was so inclined, they could make us have a Development Agreement before they make a final vote to put it on the ballot. I think we did that with Judge Krenzler’s property. We had the Development Agreement in place before the rezoning so we knew full well if he fell out of the picture for some reason, this Development Agreement had to be followed by whoever inherited or owned the property. That itself doesn’t go on the ballot but it would be a requirement for Council’s final approval. In that Development Agreement you could say within one year of the appropriate rezoning you are going to apply for and obtain a “Use” variance for the proposed use and will specify in detail what it would be, we would do general approval per the specs and requirements of the Building Department, the Planning Commission and so on. So we would have enough flexibility if our codes changed, they would have to follow our code in existence at the time. In thinking out loud, if they didn’t apply for the “Use” variance or they didn’t get the “Use” Variance, the Development Agreement would then say this whole zoning reverts back to residential.
Mr. Regan, seconded by Dr. McGrath amended the motion to recommend the proposed Rezoning from Residential Single/Family to Office/Lab for Dr. Moyal at 730 SOM Ctr Rd on the condition that the Development Agreement precedes any final vote of Council. The Development Agreement is to include the one year action plan as discussed.
Ayes: Mr. Syracuse, Dr. McGrath, Mr. Regan
Nays: Mr. Marquardt, Mr. Fikaris, Mr. Hoehnen
Motion Failed. Consideration to Council.
Mr. Diemert states, now it will go to Council for Council’s consideration.
Mr. Regan, seconded by Dr. McGrath made a motion to adjourn the meeting.
Motion Carried. Meeting adjourned at 7:45 p.m.