Tag: zoning

Zoning, ORC 519.25, and 8%

ORC 519.25 says:

The board shall adopt a resolution if there is presented to it a petition, similar in all relevant aspects to that prescribed in section 519.12 of the Revised Code, signed by a number of qualified electors residing in the unincorporated area of such township included in the zoning plan equal to not less than eight per cent of the total vote cast for all candidates for governor in such area at the most recent general election at which a governor was elected, requesting that the question of whether or not the plan of zoning in effect in such township shall be repealed be submitted to the electors residing in the unincorporated area of the township included in the zoning plan at a special election to be held on the day of the next primary or general election. The resolution adopted by the board of township trustees to cause such question to be submitted to the electors shall be certified to the board of elections not later than ninety days prior to the day of election at which said question is to be voted upon. In the event a majority of the vote cast on such question in the township is in favor of repeal of zoning, then such regulations shall no longer be of any effect. Not more than one such election shall be held in any two calendar years.

Which made me wonder how many people, exactly, 8% would be. Well, the last election for Governor was 2018, so a quick trip to the Board of Elections site for the 2018 precinct result details shows

2016 Governor’s Race
Precinct Registered Voters Votes Cast
Hinckley A 1437 1009
Hinckley B 1253 867 Total Cast 4059
Hinckley C 1134 735 8% 324.72
Hinckley D 1213 803
Hinckley E 902 645

 

Since the number of signatories needs to be greater than or equal to 8%, that’s 325 people. Which … isn’t really an insurmountable obstacle in a township with just over 5,900 registered voters — about 5.5% of the registered voters.

County Building Department

It strikes me, every time I talk to someone from the auditor’s office or the building department, that county officials must talk to a lot of people after-the-fact … like they built a shed, someone noticed it, and now they’re going through the permitting process for that shed. Because they always seem surprised that I’m in the planning stages of a project and am ringing them up to make sure I’m doing all the right things in the right order.

My note-to-self for the day — while the Medina County Building Department does permit fences over 6′, they do not require anything for agricultural buildings and fences. If you’ve got an agricultural exemption from the Township for a building, they’ll happily agree that the fence around / next to that building is for agricultural use as well. (For non-agricultural fences, you fill out the residential building form and specify the perimeter of the fence for the sq ft area and not the square footage enclosed by the fence).

Thus, I’ve concluded that the steps to build a bigger chicken coop and a pasture are:

  1. Submit the agricultural exemption form to the township
  2. Once it is approved, e-mail a copy to the Medina County Building Department for their records (so when someone rings them up about some construction that doesn’t look like it should be there, the don’t have to waste a day driving out to look at a chicken coop)
  3. Build it

Our coop and greenhouse shouldn’t need a permit from the county because the size is under 200 sq ft.

Zoning, Conditional Use, and the Comprehensive Plan

Long blurb I’ve written in response to the public outcry about the Hinckley Township BZA approving a conditional use permit for Pride One to construct senior apartment housing in a business district:

Since ‘senior housing’ is a conditional use in business districts, my opinion is that our zoning resolution put the BZA in a bind where they *had* to approve the request. When the BZA rule on something, decisions can be appealed in court. Now, if you wanted to build a shed a few feet into a riparian setback and they said no, you probably wouldn’t blow a couple grand on a lawyer to convince a Medina County Court of Appeals judge that the BZA were wrong. Big companies, on the other hand, will absolutely do that. Almost every case I see in the court docket is <Some Company> v <Some Township’s BZA>.

The setback variances, as an example, the company never presented any good justification for *needing* the variance. They wanted to build more stuff and ‘needed’ to build where they weren’t allowed to in order to have more units to rent. “I want to do it” isn’t the bar you’ve got to pass when requesting a variance (otherwise zoning rules would be pointless!). Had they taken appealed the denial in court, I expect the BZA’s decision would have stood. There are cases where the court determined that you don’t have a right to the *best* use of your property — in this case, they don’t have a right to pack as many units in the lot as possible.

The conditional use approval? If it had been denied, Pride One would likely have won an appeal (and quickly). We’d have the facility right where they wanted it, and they could have gone after the township for “damages” — legal fees, lost business, etc. Why? Because ‘senior housing’ is specifically listed as a conditional use for business districts. Our township comprehensive plan says residents *want* senior housing so long-time residents who no longer want to care for two acres don’t have to move away from the township. It’s not like we’ve got five other senior housing facilities that have already more than sufficiently addressed this need. There’s nothing in our zoning or comprehensive plan that says we want to slow the creation of senior housing facilities. They’ve got a lot of evidence that their senior housing facility should be allowed. I cannot think of any good (i.e. would stand up in court) reason the BZA could have given for denying the conditional use.

Which, of course, begs the question ‘why are we allowing senior housing in business districts!?!’ … and that, it seems, is the result of a comprehensive plan that got feedback from some 6% of the residents back in 2014 or 2015. Why would someone say “ok, that’s a reasonable response rate … I’m going to write up what the township wants based on these responses” is a great question. It seemed, from the past few Trustee meetings, that it’s possible to revise the comprehensive plan earlier than planned. That would be the first step in avoiding this in the future — once the plan changes, it’s reasonable to revise the zoning resolution to address the newly stated desires of the township. And, if there is an update to the master plan, make sure you respond to whatever survey is used. Make sure your friends who live in the township respond. Make sure your neighbors respond. Claiming to develop a plan based on responses from a small sampling of residents is absurd. Be specific — if you think we need more senior housing but don’t want apartments, then specify single-family residential senior housing.

I’d encourage people to read through the zoning resolution (https://www.hinckleytwp.org/content/zoning-regulations) and identify anything *else* that they don’t like. Look at the full list of conditional uses — you don’t want a hospital, then hospital shouldn’t be a conditional use either. Instead of reacting after the fact, we need to push through changes *before* whatever-it-is starts being built. Existing stuff gets grandfathered in (i.e. the senior housing is there even if we change the regulations), but new construction is limited by the new rules. Read the comprehensive plan (https://www.hinckleytwp.org/content/comprehensive-plan-master-policy-plan) and see if (1) it accurately reflects what you want to see in the community going forward and (2) if you think that plan is reasonably addressed by the zoning resolution.

Get engaged — attend township meetings (we’re starting to record the meetings and posting them on YouTube for people who aren’t able to join meetings at the scheduled time — https://www.youtube.com/channel/UCTffOEhdDc7UO0fN-tgyEnw) or read the minutes. Email the trustees to let them know what you think. Do you think the comprehensive plan needs to be updated? Should there be a minimum response rate to consider feedback to be representative of the community’s desires? Maybe you think the Township should explore adding a growth management plan — limiting the number of building permits available. Hudson did so to ensure the City didn’t grow faster than the capabilities of city services (police, fire). Maybe you think the lot size or setbacks need to be increased. Maybe you think everything is awesome the way it is. Whatever you think, make sure your voice is heard.

Keeping Hinckley Rural – Zoning

What do I think might help keep the township rural? I think we need a combination of changes to the zoning resolution, training for BZA members (possibly even replacing BZA members), and changes to how variances are written.

Zoning changes — Increasing lot size has been discussed, and doing so would certainly would reduce the amount of development. We might want to include minimum green space / maximum total lot coverage in the zoning regulations. Some townships out in Geauga County have looked at such regulations to retain rural character. As currently written, I believe I could transform the entirety of my 2 acre lot into driveway, parking lot, patio, etc. Or just pave the whole thing. Increasing minimum lot widths at the road might ensure homes are placed farther apart, although that might have the unintended consequence of moving some houses closer to the street with neighboring ‘flag’ lots in the rear. Increasing the side yard setbacks would ensure spacing between homes too. Including a slow growth plan — limiting the number of new construction permits per year — could ensure development doesn’t outpace the township’s ability to provide police, fire, and road repair services.

BZA Training — The BZA does not have legal authority to issue variances any time someone finds a zoning regulation inconvenient. Their authority is to issue a variance when strict adherence to zoning regulations deprives the owner of beneficial use of their property. An extreme example — a lot with a bunch of riparian setbacks that mean the buildable area is a 2×40 rectangle toward the front edge of the property. The BZA has the authority to approve a variance from the township’s fairly substantial front yard setback because a 2×40 buildable area has certainly deprived the owner of the ability to have a house on their residential property. Building a house forty feet into the front yard setback lets them have a 40×42 house that’s closer to the road than the zoning regulations stipulate. Building within a riparian setback can destabilize the bank of the stream, so isn’t a good option.

There are several variances where I don’t believe the requestor has shown a “practical difficulty” for area variances. These requests basically amounted to “yeah, I could do it another way … but I don’t want to”. The BZA does not have the legal authority to issue a variance, and I believe these variances would be overturned if challenged in court. That’s a whole process — and you’ve got to own one of the adjoining properties to have standing to challenge it in court. But there’s no reason the BZA should be exceeding its authority in approving variances, and it seems like they need to have what does and does not constitute a practical difficulty or hardship clarified.

Changes to how variances are written — I think variances should be written as restrictively as possible to address the specific problem presented to the Board. If my rear property line is 200′ long, and I want to build a 20×20 garage in the rear yard setback because of some Very Good Reasons, there is no reason for a variance of 20′ from the 50′ rear yard setback. Issuing a non-specific variance means additional, future, construction can also be built 20′ into the rear yard setback. Without having to show any difficulty in building the structure elsewhere — you’ve basically got a lot with a special rear yard setback instead of special permission to build that garage. Write a variance allowing 20′ at the rear of the property to have a 20′ variance from the 50′ rear yard setback. Write a variance allowing the building blueprints presented to the Board to have a 20′ variance.

Keeping Hinckley Rural – Senior Housing

While I don’t think any survey with a 6% response rate is a reasonable basis for determining “what the township residents want” … desire for senior housing, called out in the 2015 comprehensive plan, seems reasonable. Two acres is a lot of property to look after, especially as you get older and getting around is more difficult. Walking the woods and mowing the grass … I could see this becoming a challenge. An apartment complex at the edge of town isn’t a popular solution, but how could the township make housing more appealing to older residents?

To start out with, I think any high-density senior housing should be a unique zoning area. S1. Getting property re-zoned is a more difficult path than requesting a conditional use be permitted. There’s more leeway to not re-zone the parcel.

Conservation development allows a development to bypass minimum lot sizes by using a combination of open spaces and private lots to average out to the minimum lot size. That is, if I have 200 acres in a two acre minimum district … I can develop a hundred one acre parcels and hold the other hundred acres as open space. What if we combine the high-density senior housing with a conservation development idea. A conservation development with small front, side, and rear yard setbacks that make quarter or half acre lots feasible. Then the senior development is enveloped in a huge area of maintained green space. This would allow for continued home ownership (I sure as hell don’t want to start paying a couple grand a month in rent after I retire!), minimize yard upkeep (part of the HOA fees could even go toward yard maintenance), and the rural environment is maintained.

Zoning Variance Request – Reduced Setbacks

There is a prospective buyer who has requested a variance to the township’s setback requirements in order to build his house on a neighboring property. The zoning requirements stipulate a 120′ front setback from the center-line of the private right-of-way (i.e. the park’s road) and a 50′ rear setback from our property. The original request cited a 90′ front setback based on a public right-of-way, but that is not correct. While the request states he wants to reduce the front setback by 40′ and the rear setback by 34′, I think the actual request on the front setback is 70′.

There are a few justifications provided for the setback request — that there are technical limitations that mandate the variance, that the elevation means the property won’t bother the neighbors, that the previous zoning would have allowed construction within these bounds, and neighboring properties have similar encroachments.

While we are not trying to create a hardship for the buyer, we were given notice of a public hearing and told it was the time to state our opinion. When we were shopping for a house, we specifically wanted to live in a rural environment. When I consider the use and enjoyment of one’s property, consideration is not limited to the structures erected on the property. We specifically wanted to purchase several acres of land with wooded areas because hiking in the woods is an enjoyable activity.

Hinckley’s Master Policy Plan highlights the community’s desire “to protect and promote the rural and natural character of the Township”. This is not a new initiative in Hinckley, the 2003 Master Policy Plan speaks to preserving “the existing rural character and image of the township”. Part of our house shopping process included reviewing zoning regulations — we wanted to maintain a large garden and possibly raise farm animals. And we didn’t want to learn after purchasing a home that we were legally precluded from using the property as we desired. One of the attractive things about Hinckley was the large minimum lot sizes and expansive setback requirements.

Technical Limitations — To me, a technical limitation of a lot would be where a combination of zoning regulations preclude building on the property. As an example, after accounting for setback requirements, the smaller non-conforming lots may not have enough buildable land to construct a home with the minimum floor area requirements with two off-street parking spaces. It may not be possible to build a compliant home on a two acre lot, once elevation and waterways are considered.

In this case, there is land available for the footprint of the structure. One of the things I would like to see during the site review is the dimension of the land deemed buildable. The fact a particular home design does not fit on a lot is not a technical limitation of the lot. It is reality. There are millions of other homes, of similar size and with similar features, which could be built on the lot and fully comply with the zoning regulations.

Elevation — While the structure in question may be 30+ feet in elevation over the park’s road, carpark, and hiking trail, it is not 30′ in elevation over the woods where we hike.

Non-conforming Lot Setbacks — Section 4.1.G stipulates minimum side and rear yard depths for R1 and R2 District lots covered in the “Substandard Lot Provisions”. Section 6R1.4.K lists three sub-standard lot minimum lot areas: 32,670 sq ft (0.75 acre); 66,000 sq ft (~1.52 acres); 65,340 sq ft (1.5 acres). The lots, as previously platted, were each under 0.75 acres. Survey Book 39, page 212 contained the “current” platting prior to the lots being combined. Lot A is 0.4947 acres, lot B 0.4707 acres, lot C 0.4780 acres, and lot D 0.4960 acres. As such, it was my understanding that anyone who desired to build on one of the lots would require a variance due to the lot size — which would allow us the opportunity to review and comment on the proposed structure.

Additionally, the fact that a structure could have been build with a fifteen foot rear setback on each of the previously existing lots is a specious argument. This isn’t a non-conforming lot. The property owner voluntarily combined the four sub-standard lots into one standard lot. This included adding formerly unowned property under Bellus Road. If the desire was to build within the allowable parameters of a sub-standard lot, then the lots should have remained sub-standard.

Setback of Other Neighboring Properties — The closeness of neighboring properties was one of the few negative points about our property — walking around the kitchen patio feels walking in the neighbor’s back yard. Walking from our back yard along the South side of the property feels like walking in the neighbor’s side yard.

The other houses in the neighborhood are well over fifteen feet from their rear property lines. These measurements (1) assume decks, patios, and above-ground pools are not used in determining setback distances and (2) estimates based on the aerials from the Medina County Engineer’s GIS system. About 20′ of our house is about 25′ from the property line. Because the Medina County Engineer’s GIS system has the aerial OSIP (Ohio Statewide Imagery Program) tiles and parcel lines misaligned, the house appeared to be about 45′ from the property line. It wasn’t until we’d lived here for a year or two that Scott and a friend searched out the property pins and we realized the line was really close to the house.

Z’s garage is about 40′ from the property line. Greg and Erica’s house is over 50′ from the rear property line with an accessory building very close to the property line. Larry’s house is over 50′ from the rear property line, although the rear deck and pool and accessory building are quite close to the property line. Mark and Rae’s is over 50′. Cynthia’s house is well over 50′, but there is an accessory building situated near the property line. Side lot setbacks are certainly not in compliance with zoning standards for two acre lots, but all of these lots are well under two acres

But, of the six houses in the neighborhood, half were built more than 50 years ago. Two of the remaining three were built 30 years ago, and the newest house was built 20 years ago. I do not know what the zoning regulations contained decades ago (i.e. these may well have been compliant at the time), and the older houses may well predate zoning regulations. Even if the zoning regulations were exactly the same at the time, we didn’t participate in the variance discussion because we didn’t live here. For half of the properties, we weren’t even born.

Owner Street Number Year Built Years Ago
Z 1830 West Dr 2000 20
Greg & Erika 1850 West Dr 1953 67
Larry 1860 West Dr 1990 30
Mark & Rae 1870 West Dr 1961 59
Cynthia 1886 West Dr 1940 80
Scott & Lisa 1006 Bellus Rd 1990 30

Something’s existence does not make more of it desirable. There is traffic on Bellus Rd, but having Center Rd rerouted to our street while the bridge was under construction was disruptive.

The variance process is not a common-law system — a variance being issued in once circumstance does not set a precedent that requires similar variances be issued.

ORC Agricultural Exemption and Commerce

While at a recent Zoning Commission meeting, they discussed how a use was judged to be (or not to be) agriculture vis-à-vis Township not having a right to regulate agriculture per ORC 519.21. The example of a greenhouse used to grow flowers was given — not agriculture. Which got me thinking about the false association between ‘commerce’ and ‘agriculture’ — flowers are absolutely included in Ohio’s list of agriculture. ORC 303.01 reads:

agriculture" includes 
 farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture;
 horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising 
    of livestock, equine, and fur-bearing animals;
 poultry husbandry and the production of poultry and poultry products;
 dairy production; the production of field crops,
 tobacco, fruits, vegetables, nursery stock,
 ornamental shrubs, ornamental trees, flowers,
 sod, or mushrooms; timber; pasturage;
 any combination of the foregoing; and the processing, drying, storage, and marketing
 of agricultural products when those activities are conducted in conjunction with,
 but are secondary to, such husbandry or production.

So why wouldn’t a greenhouse used to grow flowers count as an agricultural use? Wickard v. Filburn, 317 U.S. 111 (1942) — a fairly wide reaching case — found that Mr. Filburn producing wheat for his own use (i.e. not selling it) still counted as commerce because he would have otherwise bought the wheat on the open market. Which is to say his wheat production was commerce because it was grown to allow him to avoid commerce. While Mr. Filburn’s production was not substantial, the cumulative action of personal-use growers would have a substantial impact on the market. Which was enough commerce to grant the federal government power to regulate his wheat production.

Same holds true here — and I think flowers were used an an example because it’s easy enough to say “eh, it’s just flowers”. But my concern is that the Township is going to want to use the same logic to regulate other agricultural activities. The personal production of poultry products may not be substantial, but the cumulative production of everyone who has some egg layers in their yard would be substantial. Thus egg laying chickens that produce for personal use would still be considered commerce by the logic of WIckard v. Filburn. I think someone claiming agricultural use for flowers might have a bigger hurdle, but a sufficiently motivated individual may be able to use this argument to substantiate the agricultural exemption for their greenhouse.

Hopefully this is one of those situations where the government doesn’t try to have it both ways — if personal production is commerce in one case, it should be commerce in other (very similar) cases.