NUISANCE ABATEMENT BOARD HEARING
3:00
P.M.
1. CALL TO ORDER. Mayor O’Brien called the Nuisance Abatement Board to order at 3:00 P.M.
2. ROLL CALL. Roll call was taken with Mr. Sabatino, Mayor O’Brien, and Mr. Hansley present. No members were absent. Others present were: Lynda Yartin, Danny Mahaffey, Slade Hankinson, and Daryl Berry.
3. ACTION ITEMS:
A. Review and discussion of staff report concerning alleged public nuisance issues on property located at 1400 Hill Road North, Pickerington, Ohio. Mayor O’Brien requested Mr. Mahaffey review the report distributed to the Board members. Mr. Mahaffey stated he had also distributed a memorandum to the Board members with photos taken at the site today attached. Mr. Mahaffey stated his recommendation would be to allow his office to proceed to take the proper steps to fill in a large open hole and remove two vacant and dilapidated buildings on the property. Mr. Mahaffey stated as everyone was aware, the property was formerly the Exxon Gas Station and the large hole was created when the underground gas and fuel tanks were removed by the new owner for development of the property. He stated a fence was put up, however, it does not go completely around the cavity. He stated one safety concern was that with the opening in the fence someone could get in, and another major concern is that the hole is in close proximity to Hill Road North and if someone veered off because of an accident, they could very easily end up in that large hole and result in more damage or injury. Mayor O’Brien clarified the depth of the hole is approximately 10 feet with an approximate diameter of 45 feet. Mr. Mahaffey stated the building by the hole has been stripped of its equipment and inside is mostly storage of odds and ends. Mayor O’Brien inquired if the size of the hole was increasing and Mr. Mahaffey stated it is possible and he would believe so because of the color of the water. Mr. Mahaffey stated it also appears some of the concrete in front of the front door has fallen into the hole.
Mr. Sabatino requested a brief summary of how long we have been dealing with this problem. Mr. Mahaffey stated this has been going on for about a year, and he had met with the property owner, Mr. Hankinson, as well as Lance Schultz the City’s Director of Planning and Zoning, at the site. He stated a goal of May 14th had been set to have the grass mowed and that has been done. He stated the second verbal agreement during that meeting was that by June 9th the hole would be filled in. Mr. Mahaffey stated during the past months there has been a good faith attempt by the owner to make a sale and get someone in there, however, since that has not occurred he did not feel he could wait any longer to get something done. Mr. Sabatino clarified the reason the hole was excavated was to remove the fuel tanks and then contamination was found in the soil and that is basically why the hole is still there. Mr. Mahaffey stated that was his understanding. He stated they had a buyer, the project was underway, the tanks were removed, and then infiltration of fuel or gas had leached out into the soil and the cost of removing that came to a point that the buyer pulled out of the project and left it. Mr. Mahaffey stated because of that the City has tried to take as long as possible to work with the owner to get this corrected. Mayor O’Brien stated then if the hole were filled in, it was not actually remediation; it is a safety improvement to the property. Mr. Hansley stated for the record, the question is that we would recognize that filling it in may lead to it having to be excavated again to comply with the EPA and BUSTR as far as contaminated soil. He stated that part has not been solved; we are solving a different issue, the nuisance that exists because of the open hole. Mr. Mahaffey stated that was his understanding and also that properties behind it were going to be improved and test drillings done there found no contamination. He stated it would be up to the current or new owner to see how far that plume of contamination actually went. Mr. Hansley stated he just wanted it to be clear that no matter what action was taken today it may or may not have a positive impact on any requirements that BUSTR may put on them. Mr. Sabatino stated the common analogy, in his mind, was that whatever environmental condition exists today may not be exacerbated by filling it in; it would just be an additional expense to open it if ordered later by the EPA. Mr. Sabatino stated further we would not propose anything that would further pollute the soil. Mr. Mahaffey stated that was correct, it would be quality fill. Mayor O’Brien inquired if the food mart building was on a slab or a foundation and basement. Mr. Mahaffey stated it appears to him that it is block foundation for commercial with a slab poured over the top of that. Mr. Mahaffey stated the electrical power has been removed from the building and he is not aware of any other utilities serving the building, however, he would verify that. Mr. Mahaffey stated if the Board determines this qualifies as a nuisance, he is requesting the building be removed as well.
Mr. Mahaffey stated the other issues on the property consist of the two car washes. He stated the newer of the two has a landscape pond that appears to be a breeding ground for mosquitoes, and in the back of the building, which was the entrance to the car wash there is a small open trench. He stated he is aware that some plans have been submitted for that to become another car wash that would utilize the existing structure. He stated that project will be before the Planning and Zoning Commission at their July meeting. He stated at this time he is not requesting demolition of this building, just that it be secured better, and that the pond be drained and filled with sand or something. Mr. Sabatino clarified it appears this is a small pond for landscaping and looks only. Mayor O’Brien stated he understood the pond has a recirculating pump in it and there is a waterfall thing so it just recirculates from the base back up.
Mr. Mahaffey stated the older car wash has had all of the equipment removed; it is basically just open bays. He stated in his first investigation of the building he found where kids had been making ramps out of parts that were left behind and the owner of the property has cleaned that up, however, there is still some debris and he is not sure where the drain for one of the bays goes. He stated his concern was with a drain like this it could be a possible place for someone to dump whatever they don’t want. Mr. Sabatino inquired if this was on a septic system or hooked into the municipal sewer and Mr. Mahaffey stated that is something that would have to be investigated, and if found to be that, he would request since it is vacant and the utilities removed, that it would be a nuisance and should be removed. Mayor O’Brien stated there is gas in there too because the water was heated somewhat in the winter to keep it from freezing. Mr. Mahaffey stated that was probably correct, but he was only aware that the electric has been removed. Mayor O’Brien stated we would need to check with the gas company to verify it was shut off. Mr. Mahaffey stated that would be part of the procedure on condemning, to notify all of the utilities of the state of condemnation and to ensure the utilities are to be removed.
Mr. Sabatino clarified Mr. Mahaffey has discussed these concerns with the property owner, who is present at this meeting.
Mayor O’Brien stated although it would be an improvement, he would hate to see that just be a flat gravel lot. Mr. Mahaffey stated it was the decision of this Board on what they would want to get the safety issues and the nuisance taken care of. Mayor O’Brien stated if this were gravel or some thin layer of dirt with hydro mulch on it, we would still end up with a code enforcement issue if this continues on like it is. He stated it will still need to be mowed, or there will be weeds growing up in the gravel, it will still be an on-going problem. Mr. Sabatino stated he felt that would be a maintenance issue and hopefully it wouldn’t go from maintenance to code enforcement. Mr. Mahaffey stated so far the mowing has been maintained, and the owner has worked well with him on those issues. Mayor O’Brien stated he just didn’t want to change one eyesore for another. Mr. Hansley stated the only authority under the Nuisance Abatement Board is to abate the nuisance; the appearance is another code enforcement issue that this Board has no authority over. Mr. Sabatino stated at this point he felt we should deal with the actual nuisance. Mr. Hansley stated he felt this Board had two choices; they could order the nuisance abated by the property owner by a point certain. If by that point certain he does not accomplish what we believe to be the abatement, then we can direct Mr. Mahaffey to take action, spend City dollars to abate it, and put it against the taxes. He stated this Board must decide if there is a nuisance, what is the minimum the property owner can be ordered to do, and if they don’t take the action up to what level will the City then move in and cause it to be abated to some minimum level or a maximum level, whichever way we want to spend our dollars. Mr. Sabatino stated he felt whatever is so ordered; it ought to apply to both the property owner and the City, whatever it took to remedy the situation. Mr. Hansley stated he felt that should be the gist of the motion; it would be an order against the property owner and if he did not satisfy it by a date certain, then the City would step in. He stated we would be allowing staff then to act in place of the property owner. Mayor O’Brien stated his goal in pointing this out was just to say that by thinking we were solving one problem we could be just shifting it somewhere else.
Mr. Slade Hankinson stated he is the current property owner. Mr. Hankinson stated as Mr. Mahaffey had indicated, they have been working for several months to get this property remedied. He stated he realizes the problems and he wants to move forward as much as anyone else. Mr. Hankinson stated when he was initially closing on the property he had done his due diligence and had an environmental company explore the extent of a fuel release under the ownership of Tom Young. He stated they then moved forward with closing and everything was held in escrow and once they proceeded with the environmental over-excavation of the contaminated soil was required. He stated with that over-excavation it was found that the contamination actually went further and the environmental company kept proceeding with the digging and testing, a lot of it without his permission. He stated they determined it was time to stop, take a step back, and look to see what needed to be done as they were already at three times the estimated cost. Mr. Hankinson stated the estimated cost for closure was also at seven times what was initially estimated, and the previous buyer asked for a price reduction, which brought them to ten times what was previously estimated. He stated he retained another environmental company to provide guidance on what procedure they needed to go forward with and he has been working with them now for several months. Mr. Hankinson stated he has been working aggressively looking for buyers, and for the past few months he has been working with John Roush of Berry & Miller Construction. He stated that company is very interested in the property. Mr. Hankinson stated basically there is a large excavation there and they did put up a fence around the excavation as requested by the City, a lot of debris has been removed, and he has done some general clean up and maintenance as far as regular mowing, etc. Mr. Hankinson stated he had not been aware of the problems with the landscape pond, and he could probably handle draining that and in the meantime he would get some mosquito biscuits to help clear up any mosquito problem there. He stated he will certainly work on getting rid of some of the debris at the older car wash building as well.
Mr. Hankinson stated for the past few months he has been working with John Roush of Berry & Miller Construction about filling the excavation and on the sale of the property. He stated he has talked to them several times about filling the excavation and he had a meeting with the bank to propose that. He stated he is looking to work hand-in-hand with Berry & Miller to get the excavation filled and they are working out the details at this time to get that done. He stated that would be done in a manner consistent with redevelopment and tested so as to bring it to a safe level and also move forward to redevelop that property. He stated his environmental company has indicated within the past week that they did not see a problem with refilling that hole at this time, whereas in the past everyone was taking time to reevaluate it. Mr. Hankinson stated as far as the buildings go, the bank was invited to this hearing and they were unable to attend. He stated they were concerned about the razing of the buildings and the City’s counsel would need to contact the bank’s counsel before they were razed. Mayor O’Brien stated this was because it could potentially devalue the property. Mr. Hankinson stated that was correct. Mr. Sabatino inquired if there were any plans to utilize the store structure or the older car wash structure. Mr. Hankinson stated Daryl Berry of Berry & Miller Construction is present today and he could answer any questions regarding the redevelopment plans and the use of those buildings.
Mr. Daryl Berry stated he is in contract to purchase the parcel where the newer car wash is located and Mr. Mahaffey is correct, they have a plan in place that is on the next Planning and Zoning agenda for approval. He stated there are some contingencies on the purchase of the property, obviously the approval of the plan by Planning and Zoning, and also the contingency that once that occurs they will immediately move to verify that the site is not contaminated. He stated he is in touch with the same company that the current property owners are using to do some borings and testing. He stated with those two contingencies being satisfied they will move to close, and part of the closing is that money is set aside to fill that hole. He stated they are also in contract to purchase the balance of the property and their main contingency is that they are able to find enough users in a strip center they would build. He stated the previous buyer pretty much had it filled, but one of their anchors is no longer building in central Ohio and so some tenants were lost with that. He stated they were able to secure some of those and they are going after others. He stated if they can get it filled sufficiently they will remove that contingency and level the buildings, as they have no use for them, and build a new facility that will obviously go through Planning and Zoning. He stated he could not promise this would happen, but they are working diligently to accomplish it.
Mayor O’Brien questioned with the best possible scenario how quickly would it be before the hole is filled and the property is leveled. Mr. Berry stated with the approval of Planning and Zoning they would immediately move to have the testing done, and he has been told that could be done with the results back in two weeks. He stated if that happens then by the end of the month they would know if the site is contaminated and, if not, they will go forward with construction drawings and they would be under construction within two to three months. Mr. Sabatino questioned at what point in that process would the hole actually be filled in. Mr. Berry stated as soon as they know that the site is clean and they have P&Z approval, they will be moving to close, so he would guess within a month they would look to fill the hole. Mayor O’Brien inquired of Mr. Mahaffey that, if this Board took action today, what would the timeframe be to have all the work done, and Mr. Mahaffey stated the City must serve notification of their determination on the property owner by certified mail, and he would then have a specified time to complete the actions before the City would step in. Mayor O’Brien stated the City does not want to do any harm by any decision made by this Board. Mr. Sabatino questioned if it would be possible for this Board to make a recommendation that would have a date certain so that if something had not happened by a certain time, then the City’s activity would kick in. Mayor O’Brien stated our Code states that “…abatement by the owner will be started within 15 days after receipt of the order and be complete within 45 days…” so there are some timelines in the Code. Mr. Sabatino stated perhaps if the actions have not been completed by the end of August, then Mr. Mahaffey would automatically do whatever he needs to do. Mayor O’Brien stated Mr. Mahaffey’s process would still require the notification and then the timelines outlined in our Code. Mr. Hankinson inquired if the Board was looking at separate timelines, one timeline to get the hole filled in and a separate timeline for the buildings to be razed to allow the sale of the other properties to go through. Mr. Sabatino stated he felt the most immediately concern, for safety issues, is the filling of the hole, and we could allow a little more time to take care of the buildings.
Mr. Hansley stated this Board can, by motion, find that the nuisance as described by Mr. Mahaffey exists. He stated then, following this hearing, a written order can be caused to be served on the owner and the City can take some time in issuing that order to allow the owner some additional time. He stated the order will include what the abatement of the nuisance will be, whether it is removal of the buildings, draining ponds, or whatever. Mr. Hansley stated the clock starts ticking once he is served the order, but there can be a little time in delaying the serving of the order so he will have preparation time. He stated the motion today could stipulate the serving of the order within 30 days. Mr. Hansley stated after receiving the order, the property owner has 15 days to start and 45 days to complete it, but if the abatement is to accomplish the repair and rehab, the City Manager can grant additional time to complete the abatement. He stated there is a little flexibility at staff level so the motion can be as strict or as loose as this Board wants it to be. Mr. Hansley stated he agreed with Mayor O’Brien that we would rather have the private sector clean up this abatement themselves and keep our City dollars available for a nuisance where we don’t have a property owner that is willing to work with us. Mr. Hansley stated we don’t want to wait much longer to get this taken care of, but if we are getting close we could buy the property owner a little time, but at some point the hole must be filled in and the most dangerous and obvious things must be taken care of. Mayor O’Brien stated he was headed more towards getting the hole filled in now, but without the bank here to state their case he was a little concerned that tearing down buildings will affect the value of the property and the bank will have a change of mind on that. Mr. Sabatino questioned if this Board could declare the hole a nuisance today and then have another hearing at a later time for the buildings. Mr. Hansley stated he thought the Board could split the order, have one finding and defer a finding on the other. Mr. Hansley stated his thought was if we could convince the bank that once we declare the nuisance the property loses some value, and it would then go up if the nuisance is abated. Mr. Hansley stated right now, at least if we have a finding of a nuisance, the buildings are not adding value to the property. Mayor O’Brien stated this Board has two tasks, to make a finding, is it a nuisance as presented; and the second is to determine a course of action. Mayor O’Brien stated this Board could make a finding based on the case as a whole, and then decide how to proceed with the action and how to remedy it. Mr. Hansley stated he felt the easiest thing to do today was to accept, in total, Mr. Mahaffey’s report on the site that all the listings are a nuisance and then direct staff to come back to the Board with a written order.
Mr. Berry stated he could not speak for the bank or the current owner, but the method of saying there is a nuisance, accepting all of Mr. Mahaffey’s points, would cause the bank to act. He stated he felt that would cause them to come to the table to work this out. Mr. Berry stated he liked the idea that the remedy on the buildings would not be determined today, but would be determined later, but certainly filling the hole. Mayor O’Brien stated he wanted to address any potential safety issues, and he did not feel the buildings presented as much of a safety issue as the hole. Mr. Sabatino stated he also felt they were somewhat of a concern, but not near the concern as the hole.
B. Request for Findings/Action. Mr. Sabatino moved that this Board accept the findings of Mr. Mahaffey and to declare the nuisance on the property located at 1400 Hill Road North; Mayor O’Brien seconded the motion. Roll call was taken with Mr. O’Brien, Mr. Hansley, and Mr. Sabatino voting “Yea.” Motion passed, 3-0.
Mr. Hansley moved as result of the Finding that staff be requested to prepare a written order that will later be served on the property owner that describes the specific remedies to abate the nuisance that was just found existing on that property; Mayor O’Brien seconded the motion. Mr. Hansley stated he would follow the Code and a written order would be prepared that will specify what should be done by what dates and that will be brought back to this Board for approval. Mr. Hansley stated this Board should reconvene in approximately two weeks to review and accept that written order. Mr. Sabatino and Mayor O’Brien concurred with Mr. Hansley. Roll call was taken with Mr. Hansley, Mr. Sabatino, and Mayor O’Brien voting “Yea.” Motion passed, 3-0.
4. ADJOURNMENT. There being nothing further, Mayor O’Brien moved to adjourn; Mr. Sabatino seconded the motion. Mr. Sabatino, Mayor O’Brien, and Mr. Hansley voted "Aye." Motion carried, 3-0. The Nuisance Abatement Board adjourned at 4:05 P.M., June 25, 2008.
RESPECTFULLY SUBMITTED:
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