P&Z: July 20th 2017

Planning & Zoning Commission
Workshop Meeting Minutes
Mayfield Village
July 20, 2017

The Planning and Zoning Commission met in workshop session on Thurs, July 20, 2017 at 7:30 p.m. at the Mayfield Village Civic Center, Main Conference Room for a meeting of the Planning and Zoning Commission. Chairman Pro Tem McGrath presided.


Present: Dr. Sue McGrath (Chairman Pro Tem), Mr. Garry Regan, Mr. Paul Fikaris, Mr. David Hoehnen, and Mr. Steve Jerome (Council Alternate)

Also Present: Mr. Joseph Diemert (Law Director), Mr. Tom Cappello (Village Engineer), Mr. John Marrelli (Building Commissioner), and Ms. Deborah Garbo (Secretary)

Absent: Mr. Vetus Syracuse (Chairman), Mr. Bill Marquardt, and Mayor Bodnar


  1. “Use” Variance
    Memory Care Assisted Living Facility
    Artis Senior Living, LLC
    East Commons, Ltd
    Parcel No. 831-05-015
    Berns, Ockner & Greenberger, LLC

Note: Board of Appeals approved “Use” Variance July 6, 2017


Chairman Pro Tem McGrath called the meeting to order. This is a workshop meeting of the Mayfield Village Planning & Zoning Commission. We have one item on the agenda, followed by the copious amount of materials. I hope everyone had the opportunity to read through them. This item is a request for a “Use” variance for a Memory Care Assisted Living Facility on a parcel on North Commons Blvd across from Governor’s Village. There’s a long history to this that has not involved this particular Committee. It’s been presented twice to the BZA. The first time no official action was taken because there were only 3 voting members there, 2 voted yes, 1 voted no, and that was not enough to carry the yes vote. It started over again, the second meeting lasting over two hours. I hope you’ve read everything so we don’t have to repeat all of it. We should however hit the highlights. Mr. Diemert, please correct me if I don’t get this right. We’re involved in this process in a different way because of the change in our Charter in 2015. This is the first “Use” proposal that’s come to us since that change. My understanding is that we are being asked to give a recommendation to Council either to approve or disapprove this proposal. Then Council is not bound by our recommendation. But if we recommend that they not approve it, they have to get a super majority to approve it.

Mr. Diemert replied, you got it.

Mr. Hoehnen asked David Hollister, was it your understanding that you’d be the only representative of the applicant here tonight?

David Hollister, Managing Director and licensed Real Estate Salesperson with Newmark Grubb Knight Frank replied, it is my understanding currently. It was not my understanding about 5 minutes ago. I thought Sheldon Berns would be here. I do know that my direct client is on vacation. I thought I was here to observe. I’m the Real Estate Broker for ARTIS.

Mr. Diemert states, I talked to Sheldon Berns every day this week, twice a day on some of those days. I explained to him this is your workshop, no official action will be taken and that the procedure tonight was going to be simply to understand what the context of all this is. It’s a simple thing of whether or not this particular use on this particular parcel on the north end is something that Planning Commission feels would fit in the best interest of the Village going forward. The “Use” variance is a permanent change in the land that goes with the land to the next buyer or whoever owns it, it doesn’t get renewed every two years. I told Sheldon you weren’t going to entertain anybody’s questions. We weren’t going to entertain any arguments or presentations to the Planning Commission tonight because it’s not an official meeting. Your meeting is on August 7th. At that time they will appear and want to present a video and some other things that the BZA had already seen. They already know that you will have read everything that went on in BZA. They don’t plan on repeating everything. They plan on just showing a video to give you an idea of what they’re about, the kind of use it is and try to convince you that it’s a proper use for that zoning district in that location. I suggested to them that probably nobody should be here even to observe because we wanted to have a candid conversation about procedure and process, but there’s no objection to anyone appearing and observing what’s going on.

David Hollister said, I’ll defer to you guys if you feel it’s better that I not be here, I’ll gladly leave.

Mr. Diemert replied, it’s a public meeting. You’re allowed to observe. I have no objection to it.

David Hollister remains at meeting.

History of Property & Timeline for “Use” variance request by Law Director

Mr. Diemert demonstrating on color coded Address/Ward/Zone Map, yellow is all parkland and the blue parcel up there is North Commons Blvd. This is a parcel that’s located within the zoning district Office/Laboratory. There are a number of permitted uses in there that John rattled off to you, mainly offices and laboratory type uses, they’re in the BZA minutes. Governor’s Village as you know was placed in there through a court case and settlement involving Midvale Properties. It too was in Office/Laboratory. That law suit was settled and by court order that property became available for the Assisted Living that’s there. Another parcel across the street was part of the settlement with Mr. Costanzo who owned a larger building that we needed for the expansion of Progressive and through eminent domain we took that property. We started a trial and the court eventually, the Judge brought us into chambers and we hammered out a settlement. Mr. Costanzo wanted that parcel up there that was vacant and owned by the Village and we gave it to him, it was also Office/Laboratory. It was part of a swapping of land with him. His Estate sold it off when he passed away to Mr. Cannata who owns it now. I’m not sure how many years he’s owned it. At any rate, he’s tried to market it under Office/Laboratory uses as he’s suggested and then he came to you for a Conditional Use for medical offices a couple of years ago. He tried to market it at that and testimony was he could not. His Broker did testify that it wasn’t marketable for those uses in that area. The Real Estate Appraiser testified as an expert that it wasn’t marketable for anything that was permitted in that district and that this is a perfect use for that area. He gave diagrams of different radius of driving points and the number of people that are going to get Alzheimer’s or dementia. I take offense because I’m the first baby boomer and I was the largest class in grade school, largest class in high school, largest class in college, largest class in law school and now I’m going to be the largest class in a Nursing Home I guess. They’re looking ahead and demographically they feel like there’s going to be a need for us boomers in the next 10 or 15 years.

The Planning Commission under Art III, Section 11 of the Charter says that any change in the use of land within the Village has to go to Planning Commission for report and recommendation before Council can adopt an ordinance changing that use.

When the Charter Commission recommended a “Use” variance tool to be available to the Village in 2015, the voters approved it. As a result, it is now the law of the land that the Board of Zoning Appeals can grant a “Use” variance. That is a use that can be different from everything else zoned in that district except in residential areas. No residents can receive a “Use” variance.

This is the first applicant that came in fitting the description of being in a non-residential area and looking for a variance to use this for a Memory Care Facility which is not a permitted use in that district. In fact, we have no zoning district that does permit that. As a result, they came in, filled out the application that we put together with the Building Department and John over the last year answering questions to show the practical difficulty of using the property as zoned and they attempted to meet that criteria. Some believe they met the criteria, some believe they didn’t. But that’s not the decision for Planning Commission to review at this point. Council will review that and they will make the decision whether the burden was met to give a “Use” variance. But, before they can do that they need to refer it according to Art III, Section 11 that no action shall be taken on any ordinance or any zoning or use change or development without getting a report and recommendation from the Planning Commission. That’s why it hasn’t been referred to you. It will be officially referred on Monday. I gave you a copy of the ordinance that will be on the agenda. The Council will have their First Reading of the Ordinance and then refer it to you officially. August 7th will be your Public Meeting at which time their applicant will be here with whoever they want to make a presentation to you as to why this parcel is a good spot for this proposed use. We’re not going to be concerned with plans, with side yards, driveways, heights, none of that is relevant now. It will be only after the “Use” variance is granted or denied. If it’s granted, then they will develop plans at that point. Those plans then will go to the Building Department, then will go to you and then we’ll get into that part of the process. This decision that you’re making now has to do just with use.

Mr. Hoehnen said, dealing only with use is only part of the problem. I’m also concerned about who is going to occupy that use. In this case we’re talking about a Memory Care Assisted Living Facility. I’ve read all the minutes, all the evidence, all the testimony, the application itself and all the attachments and I haven’t seen word one about State Regulation with these facilities. I want to know who the State Regulatory Agency is, what regulation entails. Have there been onsite visits to the 2 facilities that are in the Cincinnati area? If so, was a report issued by the State to the owners of these facilities? I want to see those reports, we should want to see those reports. We want to make sure that we’re getting the proper tenant in this Village. Unless we can tell what the State thinks of the operation, I don’t think we can make a reasonable decision. That’s why I think it’s important that we have that information. Not only the 2 in Ohio, I can remember Mr. Feltman saying there were 9 operating facilities, presumably 7 in other States. Presumably they too are regulated by a State Agency or Federal, but most likely State. Have there been onsite visits to those facilities? Are there written reports from the regulatory agencies? If so, I want to see them. I’m disappointed that Mr. Feltman is not here tonight because I have questions for him.

Mr. Diemert replied, you’ll have that chance on August 7th.

Mr. Hoehnen said, it would be nice to have the information before then.

Mr. Diemert said, if I could David just again to emphasize, that’s why I’m here tonight to try and keep this on the right track. All those questions you asked, you should probably forget about who the applicant is, you should forget their name, you should forget what they have anywhere else. The only thing that this Board should focus on is; should a Memory Care Facility be an appropriate use for that parcel, not the approval of this applicant, not the approval of these people or this company, but just that use.

Mr. Hoehnen said, maybe I’ve overstepped on jurisdiction. It would seem to me that Council would be interested in that information. That information should be given to Council.

Mr. Diemert said, exactly.

Mr. Hoehnen said, right now we don’t have it and nobody has asked for it.

Mr. Diemert said, here’s what’s going to happen. After you make your report yea or nay to Council, they have to have two successive readings, one will be on the 24th, that’s why I gave you the timeline. Then there’ll be one meeting in August, then they have to advertise the thirty day Public Hearing meeting that will be in September. The public has the right to call and express all their concerns and ask questions. At that point or even before if Council wants to have a special meeting and have all of the evidence put back in again the Administration who has some concerns about this will get to explain their concerns and the impact on the Village. That will be to Council because they are the ones who have to determine did BZA get enough information. Did they get all their questions answered? Did they not ask the right questions? Do more questions need to be asked? All of that is going to happen before Council. Then they make the decision whether this is the proper applicant to receive this variance for this use on that parcel. Your points are well taken, it’s just premature at this stage where we are.

Chairman Pro Tem McGrath said, what I’m hearing is that at this point in this process, this Board is not evaluating the applicant in any way shape or form, just the use. So it’s just do we think that the Village would be served by having a Memory Care Facility?  

Mr. Diemert replied, correct.

Mr. Fikaris asked, what are some considerations that we should be thinking about in passing this or not?

Mr. Diemert replied, that’s a good question same as David’s. You’re looking at the existing uses that are there now in Office/Laboratory and is this something that kind of has the same impact on the Village and the surrounding area at this parcel. Would this kind of use be totally contrary to that zoning district, totally contrary to what we would want? Anything else John that you could think of?

Mr. Marrelli replied, maybe if you believe that this property couldn’t be used as an Office/Lab district. I think that would be a consideration. 

Mr. Diemert said, we haven’t changed the uses permitted in the Office/Laboratory district probably for 20 or 30 years. Back then they didn’t even have Memory Care Facilities. It was just probably Nursing Homes. Our code hasn’t been updated to accommodate this proposed use. For instance, the BZA sees a lot of air conditioners because when we wrote our code there weren’t a lot of air conditioners. Now people want to put them in different places i.e. side yards where they weren’t allowed before.

Mr. Marrelli said, we don’t really do that here but a lot of other places do.

Mr. Diemert continued, so that would be a variance from our code because it’s prohibited in side yards. This is now something where this is not a permitted use. Could it be or should it be or does it fit within the use categories that are mentioned in the Office/Laboratory district.

Mr. Regan going back to the timeline. As we go through the P & Z process, whatever determination we make, Council’s goal is to approve the variance?

Mr. Diemert replied that’s correct, or reverse the variance.

Mr. Regan said, let’s say they approve the variance, then it comes back to P & Z?

Mr. Diemert replied, the way the Charter amendment says, this ordinance cannot be an emergency measure. It has to have Three Readings and then it takes 30 days before it becomes effective. The earliest time that they will vote yes or no on this will be Sept 25th. If Council votes to adopt it, it takes 30 days for it to become effective. October 25th is the first time the variance will now be attached to that land. At that point the property owner can prepare plans, development plans, negotiate an Economic Development Agreement with the Village, come to the Building Department to get all the approvals needed, go to Planning Commission where you’ll now see plans, side yards, you’ll see the person that’s going to run it, you’ll see the size of the rooms, the hallways and all that kind of stuff. You could again at that point ask questions if Council didn’t get into it enough.

Mr. Regan said, once Council at whatever level approves that BZA variance, that’s stuck on that land. That land is now essentially zoned Memory Care Facility?

Mr. Diemert replied, Office/Laboratory and Memory Care. It’ll be able to be used for anything in Office/Laboratory plus Memory Care.

Mr. Marrelli said, that doesn’t mean that ARTIS couldn’t say on October 26th; oh by the way we sold it to somebody else for that use.

Mr. Diemert said, if they see they’re not successful as a Memory Care Facility and they want to turn it into an office building that’s permitted in Office/Laboratory, they could have that because it’s still a permitted use.

Chairman Pro Tem McGrath said, it keeps its old use as well.

Mr. Diemert replied, correct.

Purchase and Sale Agreement Request

Mr. Regan asked, did I understand that the perspective owner ARTIS wants to know that they have the variance to do what they do before they build it? I’m asking you as a lawyer can we see a Purchase and Sale Agreement between the current owner and the buyer that says subject to receipt of the-

Mr. Diemert replied, I would guess they would have that. I don’t think we have a right to ask for it.

Mr. Regan said, the reason I bring it up is I have 8 pages here (P & Z 12/3/12 minutes) and there’s probably ten times this of dealing with Mr. Cannata and his group and if this is the wrong place, I’m sorry. I’m tired of this crap. When I first saw the article about the BZA meeting, I was jumping for joy. By reading it, it sounds like these people are professional and they’re going to buy something. Well, we’ve been treated in an unprofessional way as far as I’m concerned by the current owner. At any rate, I just want to see that someone has some skin in the game. I don’t know why we can’t say if you want the variance at least at the level that we are dealing at (P & Z), that we can’t say that we want to see the Purchase and Sale Agreement.

Mr. Diemert said, you’re not the only one who has expressed that. I planned on making a list of those kinds of things for Council. It really shouldn’t bear again on whether you think it’s a good use or bad use. But, that is an issue that I think Council might have an interest in. If the applicant, property owner and ARTIS are willing to share their Purchase Agreement and even blackout numbers, would show that this is based on an option that they get this variance. If I were the lawyer for ARTIS, I certainly would want that escape clause in there that if I don’t get a variance to put my, I’m pretty sure that exists because Cannata has been at all the meetings. He is probably looking to sell it, you’re probably happy that he is selling it and you’d probably vote for it just to get him out.

Mr. Regan said, I’m all for it. But John, does Cannata owe the Village money?

Mr. Marrelli replied, yes.

Mr. Regan said, personally I don’t want to hear about it until he pays what he owes the Village. So he could pound salt.

Chairman Pro Tem McGrath said, back to Dave’s issue. Let’s say Council ultimately approves the use. Can we keep someone out because we don’t think they’ve done a good job meeting the State requirements at their other facilities?

Mr. Diemert replied, we might have trouble doing that. Again, this timeline is only to the point where the ordinance becomes effective. That 30 days after it will allow for a referendum, if folks do not feel the variance was appropriate, there could be petitions circulated and a vote of the people could take place. As far as examining the net worth-

Chairman Pro Tem McGrath said, the quality is what I’m asking about.

Mr. Diemert replied, there was a whole lot of presentation on the high quality this organization puts forth. Our Fire Chief if you read the minutes did a lot of investigation on that. He didn’t find any negatives as to what they did in the world, but they did find that the number of calls were somewhat de-exaggerated.

Chairman Pro Tem McGrath said, it may not even be this group they’re talking about. They could turn around and sell it in October.

Mr. Diemert said, it’s their business.

Chairman Pro Tem McGrath agreed. My point is once the variance is a go, anybody could come in and use that variance. Using a restaurant for example, we say o.k. we’ll approve a restaurant. We could get a really nice restaurant or they could sell it and we could get Hooters.

Mr. Diemert said, an example from Charter Review was a Crazy Horse. The Charter Review Commission was very much opposed to allowing this because somebody could come in on Beta and get a variance for a restaurant and we wouldn’t have control over what restaurant.

Mr. Marrelli said, unless it was a Conditional Use Permit, then you’d have control.

Chairman Pro Tem McGrath said, but this isn’t.

Mr. Marrelli replied, because they’re not asking for one.

Mr. Diemert said, that’s the point that Charter Review focused on. Who knows how many good businesses we’ve lost that didn’t want to take the risk that the Hilton took. Who would put that much money into a building knowing that every two years it could be taken away from them? Not many good businessmen would do that. The Charter Review Commission thought that this would be an avenue to attract business. We don’t know who has chosen not to go to Mayfield Village because of our referendum zoning, we don’t know.

Mr. Regan said, I would disagree with you Joe, I hate disagreeing with you. Only a good businessman would take that risk. Only a good businessman who knows what they’re doing and how they’re doing it and they intend to live by the letter.

Mr. Diemert said, and Hilton was comfortable taking that.

Mr. Regan agreed, and they succeeded. 

Mr. Jerome said, something I brought up the other day and Paul may be able to speak to this, you were on Charter Review Commission. I reached out to one person and they said that it didn’t matter the way it looked. I thought the original one what Joe’s basically saying, this was supposed to be one of the tools in our toolbox to attract businesses that we want. Now it seems like it’s the other way where it’s here and now a business wants to come in and use it to their advantage. Have we now opened up Pandora’s box that we have this now? The original reason was to bring a business into Mayfield that we wanted.

Mr. Diemert said, this is a perfect example of this and that’s why it’s here. Is this the kind of business use that you would like to see in Office/Laboratory? I would think if any kind of restaurant came in we would want to put a lot of conditions on that restaurant i.e. white tablecloths or be a National chain.

Mr. Marrelli asked, is it beneficial for our Village? What is the benefit? That’s the question I keep asking and I haven’t gotten an answer yet.

Chairman Pro Tem McGrath said, it seems to me that this is even more complicated because across the street is this use. There’s some overlap. They have a certain number of rooms that are specifically for dementia.

Mr. Marrelli asked, are you saying that one place is enough?

Chairman Pro Tem McGrath replied, no but I think that’s something we have to consider. Whether it’s a grocery store, restaurant or memory facility, how many of them help the Village and at what point does it tip over into dementia lane?

Mr. Diemert said, the Council is going to have to determine whether this applicant is the right person for that variance. You’re looking at in Office/Laboratory is this parcel, is this kind of use similar enough to Office/Laboratory to be a permitted use for that parcel there. Getting into examining demographics on whether or not it could succeed or how many we want probably is going pretty far field because it’s their property.

Mr. Regan said, and they’re putting in big bucks to buy and develop it. I tend to lean towards the fact that people who are in that business know the demographics and the market. They see Governor’s Village across the street. Whether they think they could do a better job or the market will grow that much. For me it isn’t a big stretch because we went through this whole to do about Conditional Use Permit for a medical building. I understand there’s a lot of various positions and related businesses in medical buildings. If it’s the wrong place these people aren’t as smart as they think they are.

Mr. Diemert said, then they won’t build it or they’ll sell it or they’ll try and get another use that’s already permitted.

Mr. Regan said, the variance says Office/Laboratory or Memory Care Facility.

Mr. Diemert said, there’s ½ dozen other types of uses that are contained in Office/Lab that they could use it for if this fails. The idea is there’s a lot of questions like David’s like yours, like John’s. How hard did they market it? How much money did they spend? Did they use newspaper and/or multiple listing services? All that kind of stuff has come up since the variance was granted. Some of it was approached during the BZA Hearing. All those questions again could come up in more detail in front of Council to see whether or not this property owner should get this variance. Did he demonstrate some practical difficulty in using his land the way it’s zoned that allows him to get this use? Back to the Planning Commission tonight, the 7th or however long you want to take is at the point where they merely have to decide whether or not this kind of use is something that would fit.

Chairman Pro Tem McGrath said, there’s two questions here;

  1. Is it a hardship for him to not get this variance? He has to try and show us that.
  2. What value is this to our Village?

Mr. Diemert corrected the term “hardship”. The Charter was amended by the voters and clearly took away the “hardship” standard and that is a very difficult standard to meet. They changed it to “practical difficulty” which is not as hard.

Chairman Pro Tem McGrath said, if he’s having practical difficulty, we should lean toward-

Mr. Diemert said, the BZA has already made that decision. You have to live with that. Right or wrong 4 to 1 that they met the standard of practical difficulty and therefore they should be given a variance to use the property for a Memory Care Facility. That examination has taken place, testimony under oath, witnesses and dozens of people. Council will have to approve that or reverse it. They have to refer to you to get your report and recommendation as to whether or not you think that use in that neighborhood is acceptable as far as planning for the Village is concerned.

Mr. Marrelli said, if somebody wanted to buy 10 acres on Beta that was opened and they couldn’t get any factories to come in or any of them uses, then they could come here and say; I tried everything, I bought this property and now I have a practical difficulty using it so you need to rezone it to something else.

Mr. Regan said, they couldn’t come here. They have to go to BZA.

Mr. Marrelli said, when BZA says hell that’s what we’re supposed to do. The guy is stuck with this property, we need to let him do something else.

Mr. Regan said, I’m not passing it off but the people said yes, the BZA should be able to determine. Those people could go to BZA and say I have practical difficulty with my Beta property, I want to put a Hooters in there.

Mr. Diemert said, BZA would have their long hearing and decide whether or not that’s an appropriate “Use” variance. That’s why Charter Review Commission had all the checks and balances. BZA is the first step, then it’s the Council and Planning Commission. Council is going to have to get into the whole thing, affirm, reverse or modify. Then there’s the rights of the Mayor to veto. Then there’s the right of the citizen’s to go to court within the 10 days after that decision, then there’s the right of referendum where petitions are signed. There’s 5 or 6 checks and balances where if a Hooters were approved by the BZA, I’m betting you somewhere along the lines they’d get kicked out.

Mr. Regan goes back to Purchase and Sale Agreement (PSA). No disrespect to ARTIS whoever they may be. I have a very ugly feeling about the current ownership. I don’t want to see a stalking horse come in here represent themselves as the purchaser, changing the conditional use from medical building to a “Use” variance-

Mr. Diemert said, I think the Conditional Use Permit has expired already.

Mr. Marrelli clarified, they never started it. It died because he never enacted it. It’s all gone.

Mr. Regan said, I want you to see that in order to get their variance there’s a signed Purchase and Sale Agreement conditioned on the receipt of that variance.

Mr. Diemert said, I think that’s a legitimate request. I think we could probably get that. Again, how does that relate to this use on that property, but it’s a legitimate question as this goes on. You want Council to be able to affirm that the interested property owner is really going to be ARTIS and not Cannata.

Mr. Regan replied, ARTIS and not Cannata and there’s some skin in the game.

Mr. Diemert asked, what if it’s a 20, 30, 40 year land lease where ARTIS would be the owner of the lease but Cannata owns the land? David, is that something you have authority to answer yet?

David Hollister replied, all I could say is a Purchase and Sale Agreement has been executed. I could also say only in general terms, I don’t want to address anything specifically to the PSA, but in my role as a Real Estate Agent representing the buyer that has a specific use in mind, there is no way I would ever let my client who is a buyer sign an agreement that doesn’t have a contingency based on getting their desired use.

Mr. Diemert said, I’ll ask the attorney to verify and show me a copy.

Mr. Fikaris states, to oversimplify a very complicated thing, if you look at the uses in that area, right across the street you have a similar so it makes sense to say why not. You also have office, but of a different animal right there too. It could be a win win if that’s what we want, we have a parcel that’s occupied with a desired facility. Granted, this doesn’t ever touch the hotel or restaurant thing because these are highly regulated. You don’t mess around with these type of facilities. They’re tightly run, profit centers. These guys probably aren’t going to play fast and loose. If it doesn’t pass muster, if nothing happens we’re back to square one. The other way we have a facility with a committed owner who hopefully will be vetted in proper ways. There were concerns brought up in BZA about safety factors. If it doesn’t work out then it doesn’t. The office is still there too that he could build on. I know there’s a risk. How much of that risk do we consider tonight? Do we think this is a good use for this property?

Mr. Marrelli said, I have something you should think about. There’s two pieces of property in our town that are Office/Lab that are not used. Once you open Pandora’s box as you say and the word gets out that they can’t use it for Office/Lab. Let’s say Progressive decides they’re not going to build offices there. They could come in and ask for anything. In my opinion, you’re going to have a hard time telling anybody no, we don’t like that. They’re going to say, you have to allow us to use our property, we have a practical difficulty building offices. When the Village did their zoning map and they carved out all these zones, they supposedly did the studies and said these areas will remain residential, these will remain office, and this will remain production/distribution. Up until now we haven’t really had a problem with having people build on them and use them. To me, this is like a rezoning without going to referendum.

Mr. Diemert said just to clarify, John’s kind of been against this from the beginning.

Mr. Marrelli said, I’m just pointing out the facts.

Mr. Diemert said, the other side of the fact is that Charter Review heard all of that and they still recommended it and the voters approved it. The variance is there. The law is real clear that this parcel variance has no binding effect on another parcel getting a variance. It is not something that you have to say yes to. Each one is looked at on the merits individually. This parcel’s got a place across the street. It’s got offices all around it. Progressive’s big location over there that they bought, they’re not coming in to say they want to put in a huge hospital there. They bought if for office and they knew they could use it for office.

Mr. Marrelli said, but Cannata bought it for office too, then he decided, maybe not. 

Mr. Diemert said, but the BZA’s going to look at what Progressive did, what they tried to market it for. Could they not market if for anything else other than hospital?

Mr. Marrelli said, it still goes back to my point that you could literally go out and buy a piece of property that nobody wants to use and then come to the Boards and say; I need to do something else.

Mr. Diemert said, you look at that as a negative. Charter Review and the voters look at that as a positive. A piece of property that nobody wants to buy or use is a bad thing for the Village. So the Commission wanted to have a way to make properties become developed. The use of this variance is what has allowed this parcel to become desirable for somebody to build on. That’s the purpose behind what the variance procedure was about.

Mr. Marrelli said, that helps to know what their thinking was. I wasn’t privy to the goings on at the Charter Review.

Mr. Diemert said, you’ve got a little reading to do John. I too had to refresh my memory.

Mr. Regan said, I do remember the name Sheldon Berns is relation to what now is Costco and that whole area in Mayfield Heights. There’s another piece of property in Moreland Hills that was tied to the same case. Speaking as a resident of the Village, I don’t want to go through that. I don’t want somebody taking us to court and us paying the money that Mayfield Heights had to pay because they prevented somebody from a reasonable use of their property.

Mr. Diemert said, that wasn’t even a variance issue. It was residentially zoned land and the court upheld that it was very unreasonable for the Boards and Commissions of the city to not rezone it because of what was all around it. That cost the city a lot of money. The same idea, we’re in court with the other property. Dr. Moyal wanted to get a Conditional Use Permit and he wanted to get us to rezone the residential parcel in front of the Georgian building to Office/Laboratory. Council chose not to do that, chose not to put it on the ballot. As a result, he filed a lawsuit. We’re in Federal Court over that now. Different than this case because that’s a residentially zoned piece of property. It has residential adjacent and across. We’ve got these arguments to avoid the Costco type thing. This property is not on residential so that’s why they were able to ask for the variance.

Mr. Cappello said, P & Z right now is just to give their recommendation yea or nay to Council if they feel this use is a good use for this property.

Mr. Diemert replied, correct. You as citizens certainly care and I’ve made some notes on the questions I’ve heard. I’m going to make sure Council has the opportunity to get that aired.

Mr. Fikaris said, we can’t ignore some of the consequences that would be involved in the decision. I didn’t discount any precedence when I made my analogy but John, you said any “Use” variance request would be in question under that same set of thinking. Meaning the next guy that comes up for a “Use” variance wherever in the Village, if nonresidential and we say yes, you say the first “Use” variance request granted will set a precedence.

Mr. Marrelli replied, it could.

Mr. Cappello said, Joe said it doesn’t.

Mr. Diemert replied, it doesn’t.

Mr. Marrelli said, we all know that everything stands on its own. We all know that in real life people will say you don’t have a good reason to turn me down if you didn’t turn the other guy down. If I was on that side of the fence that would be my argument. How many times have you sat in this room and heard; we did that before so we should probably do it again.

Mr. Regan said myself, I like the process. I understand there’s a couple buildings on Beta that the owners struggle with and we struggle with. I think it’s a good idea to have another set of ears going through this process in getting a zoning change instead of the list of Conditional Use Permits that we have. I’d rather have somebody come with a big idea than some of the little tiny ideas. Maybe it’s not bad. I don’t think it’s a huge leap. This owner came to us and said even though I’ve got one of the biggest corporations in the world across the street from me, I can’t get a related business to come in there and develop it so I need a medical building. So he got a medical building. I don’t think it’s a big leap from multi medical office building to this. 

Mr. Cappello said, it’s up to Council to consider everyone’s concerns in re Fire Department, etc. 

Mr. Diemert said, we put that revenue evidence in to the BZA how much more income tax we make on office buildings than we do on these facilities.

Mr. Cappello said, I’m an outsider, I’m not voting. With all prejudices aside, we’re here to decide if this is a decent use for that property.

Mr. Diemert said, that’s it. If all of you understand that and you think about it between now and the 7th, feel free to email me, call me and ask me any questions. If you have more ideas like David has and you have information you want Council to get, I’m gathering that now and will present it to ARTIS and make sure they address all those issues. That’s what Council’s going to focus on, whether or not this is the right applicant.

Mr. Regan said, I can’t vote on this on the 7th and I don’t think we should vote on it until Mr. Cannata pays you what he owes you. Debbie, how much is that?

Ms. Garbo replied, itemized fees due for Mayfield Village Meetings, Engineer and Landscape reviews 10/4/2011 through 9/9/2015 total $5,188.50. 

Mr. Regan said, I hope you understand the frustration this group has had. This man and his team have come in 2, 3, 4, 5 times, made this big thing, we’ve got to have it today, but what is it that you want, I’m not sure so why don’t you give me this.

Chairman Pro Tem McGrath said, he couldn’t even tell us how many buildings he needed, maybe 3 maybe 6.

Mr. Diemert said, the more you talk about the property owner that way, the buyers representative is going to go back and tell the buyer, maybe you better rethink this deal and now you’re going to have Cannata for the rest of your life.

Mr. Regan said, he’s a wonderful guy. Said in jest, I think he gave that $5,000 to some charity.

Chairman Pro Tem McGrath asked, if we don’t feel comfortable making a recommendation on the 7th, we could say that?

Mr. Diemert replied, yes you can. The 90 days starts this coming Mon, July 24th. Now, if ARTIS doesn’t want to wait the 90 days because this is all going to get backed up, then they may cancel the deal.

Mr. Regan said, the clock starts Monday. Can you get us the information on who governs this type of facility and what’s their track record?

Mr. Diemert replied, I think you’ll see a lot of that in Council’s minutes. But on the 7th ARTIS will be here to make a presentation of that nature and you could ask all those questions.

Chairman Pro Tem McGrath said, that should not change our opinion. We are not assessing how good a job they do.

Mr. Diemert said, I don’t think this company will shy away from showing you how great they are in their minds. I have reason to believe they’re a legitimate and good company and good history. You’ll see that in their application addendum. If you read that you’ll see there’s a lot of history.

Mr. Regan said, I was ecstatic when I read it.

Mr. Hoehnen said, everything in here from ARTIS is them patting themselves on the back. There is no independent judgement for the evaluation of ARTIS.

Mr. Marrelli said, it could be somebody else, it doesn’t matter. It’s a rezoning basically. It doesn’t matter who gets it. You can’t base it on who the company is.

Mr. Regan said, if that be the case, all we have is one more layer of zoning on top of this through the variance. We have Office/Lab with a Memory Care Facility with this plan, should it turn out to be a bust.

Mr. Diemert said, an additional use that whoever owns it can eventually develop it.

Mr. Marrelli said, they could get the variance, transfer Title and sell it to the Little Sisters of the Poor, a nonprofit organization.

Mr. Regan said, the way we had left our approvals for Cannata were he needed to address the needs of the residential property owner as well as a Development Agreement. I think that should be on record.

Mr. Diemert asked, Mr. Kinnaird?

Mr. Regan replied, yes.

Mr. Diemert said, that’s in addition to the variance. We worked out an offer that he was happy with. He came and testified that he’d rather see trees there but knows it’s out of his control.

Mr. Jerome said, he has to be protected, he has his rights too. Joe, is there a possibility for a Development Agreement that would limit this “Use” variance to the owners? If they own it for 50 years and it lasts for 50 years and they sell it, it’s done.

Mr. Diemert asked, a Development Agreement that binds them to always own it?

Mr. Jerome replied, an agreement that limits only them to this Memory Care “Use” variance.

Mr. Diemert said, I don’t know that we could do that.

Mr. Marrelli said no you can’t, it goes with the land.

Mr. Jerome said, just a thought. It could be like a long term conditional use.

Mr. Regan said, you know somebody will buy them out some day.

Mr. Marrelli said, and they could knock the building down and build something else.

Mr. Regan said, but it’s tied to Office/Lab, Memory Care.

Chairman Pro Tem McGrath said, I don’t want to see any halfway houses or group homes.

Mr. Diemert said, they have represented what it’s going to be and that’s how the variance was granted, based upon what was presented. We have sketches, pictures, renderings, a site plan and the variance will be based on that. There will not be any material change from what the BZA saw. If they for some reason want to come in and step it up to General Assisted Living or Skilled Nursing, they’ll have to come back and get a variance for that.

Chairman Pro Tem McGrath asked, any further questions or comments?

There was none.


Planning Commission’s next regular scheduled meeting date Mon, Aug 7th. Time to be determined.

There being no further business, the meeting adjourned at 8:40 p.m.