PLANNING AND ZONING COMMISSION

PLANNING AND ZONING COMMISSION

CITY HALL, 100 LOCKVILLE ROAD

TUESDAY, OCTOBER 13, 2009

REGULAR MEETING

7:30 P.M.

1. ROLL CALL. Mr. Blake called the meeting to order at 7:30 P.M. with roll call as follows: Mr. Hackworth, Mr. Binkley, Mr. Blake, Mr. Nicholas, Mrs. Evans, Mr. Bosch, and Mr. Sauer were present. No members were absent. Others present were: Lance Schultz, Lynda Yartin, Joe Henderson, Mitch Banschefsky, Greg Bachman, Brian Wisniewski, Trisha Sanders, Jean Butler, Ben Hale, Jerry Schwartz, Lou Ann Todd, Michael Kolb, Shawn Lanning, John Sheddenhelm, and others.

2. APPROVAL OF MINUTES OF September 8, 2009 Regular Meeting. Mr. Bosch moved to approve; Mr. Hackworth seconded the motion. Roll call was taken with Mr. Binkley abstaining, and Mr. Bosch, Mr. Sauer, Mr. Hackworth, Mr. Blake, Mr. Nicholas, and Mrs. Evans voting “Yea.” Motion passed, 6-0.

3. SCHEDULED MATTERS:

A. A public hearing and review and request for a motion to approve a Rezoning and Preliminary Development Plan for the approximate 16 acre Ebright/Homestead parcels from R-4 (Residential) to PC-3 (Planned Community Commercial District) for a Retail, Office, and 4 Seasons Sports Complex Development located at 1010 and 1040 Refugee Road just west of Hill Road Plaza (former Big Bear). (TABLED, 08/11/09) Mr. Bosch moved to remove from the Table; Mr. Hackworth seconded the motion. Roll call was taken with Mr. Bosch, Mr. Nicholas, Mr. Sauer, Mr. Hackworth, Mrs. Evans, Mr. Binkley, and Mr. Blake voting “Yea.” Motion passed, 7-0.

Mr. Schultz stated the public hearing was held at the last meeting, and a second public hearing is not required, so this will not be a public hearing. Mr. Schultz reviewed the staff report that had been provided to the Commission members and stated the owner proposes to develop the site into a mixed-use development that includes an indoor sports complex, commercial, and an office component. Mr. Schultz stated the proposed plan is consistent with the Land Use Plan which identifies this area for mixed use development, and is also consistent with our Growth Management Plan. Mr. Schultz stated they have proposed a single curb cut at the Windmiller Drive light and also a right-in/right-out just west of that light. Mr. Schultz further stated the engineer will require a traffic impact study for this site and also we are requesting a service road access along the northeastern portion of this site. Mr. Schultz stated the first phase of the development is an approximate 100,000 square foot soccer facility, the second phase is approximately 75,000 square feet of office in 12 buildings, with the associated parking and a retention pond in that area. He stated the third phase is a 25,000 square foot retail in a strip center and an outlot. He stated the access at Windmiller Drive would be a public road that would stub to the western property line, and to the north would be a private road that would access the office buildings and the soccer facility. Mr. Schultz stated this is a planned district and as such it allows for deviations from our Code, and they are requesting four variances in Sub-Area A, which is the soccer facility, and staff can support these variance requests. He continued the first variance deals with the height of the building, a front yard parking set back variance, a rear yard building setback variance, and a parking space variance/interpretation. Mr. Schulz further stated staff can support the requested four variances for Sub-Area B, which include a parking setback variance, a building setback variance, and a rear yard building setback variance. He continued they are requesting a parking space variance of 153 spaces and staff could not support that. He stated staff could support a variance that complies with Section 1282.11(e) which allows a 30 percent reduction when parking is shared with Sub-Area A. For Sub-Area C they are requesting a front yard parking setback variance and a parking space variance and staff does not support these variances. Mr. Schultz stated further staff is requesting an additional .96 acres of usable open space that does not include the water. Mr. Schultz stated staff supports the rezoning and preliminary development plan that complies with the minimum zoning code requirements and the following conditions:

1. That a traffic impact study shall be prepared by the applicant and any required traffic improvements shall be incorporated as required by the City Engineer prior to final development plan approval.

2. That a dedication plat and legal description shall be prepared for the City to accept and record the right-of-way as needed along Refugee Road per the City Engineer.

3. That Sub-Area A shall have a 25-foot wide cross-access easement along the entire eastern portion of the property per the City Engineer requirements.

4. That the sanitary reimbursement fee shall be paid prior to construction drawing approval for each lot.

5. That if the parcel to the west is not zoned commercial before any buildings in Sub-Areas B or C receive occupancy permits, the development shall comply with Type A buffer requirements along the western property line.

6. That a sidewalk shall be extended along all the public and private streets.

7. That the proposed development shall meet all other City development requirements.

8. That the site plan shall be in compliance with the tree preservation ordinance.

9. That the site plan shall be in compliance with the Violet Township Fire Department requirements.

10. That the rear yard building setback for the 4 Season Sports Complex (Sub-Area A) shall be reduced form 30-feet to 20-feet.

11. That the maximum building height for the 4 Season Sports Complex (Sub-Area A) shall be increased from 35-feet to 45-feet.

12. That the front yard parking setback for the 4 Season Sports Complex (Sub-Area A) shall be reduced from 18-feet to 7-feet.

13. That the parking space requirements for the 4 Season Sports Complex (Sub-Area A) shall be modified to allow 194 parking spaces.

14. That the parking setback along the proposed private street for Sub-Area B (office buildings) shall be reduced from nine-feet to one-foot.

15. That the northern side yard building setback for Sub-Area B (office buildings) shall be reduced from 15-feet to 7-feet.

16. That the front yard building setback adjacent to the public street in Sub-Area B (office buildings) shall be reduced from 30-feet to 20-feet.

17. That a parking space variance for Sub-Area B (office buildings) shall comply with Section 1282.11(e).

18. That the eastern building setback for Sub-Area B (office buildings) shall be reduced from 25-feet to 15-feet.

19. That the permitted uses for the development shall be per the zoning code to be consistent with Section 1282.11.

20. That the proposed development shall comply with the flexible requirements in commercial districts per Section 1282.14.

Mr. Schultz stated he understood this was a large number of conditions, but this is a fairly complex project. He stated we have had similar projects, the Mayflower project, the Zane property, and the Marcus Theater project all had a number of conditions. Mr. Schultz further stated this is the first step in a three-step process. He stated after preliminary approval it must go for final approval and during that time, hopefully, they would submit another site plan that complies with the majority of these conditions so the number would be reduced significantly. Mr. Schultz stated the developer has included text requesting different uses for various districts that are not consistent with our zoning code, and we are approving the site plan, not the text, and we want the uses to be consistent with our zoning code. He further stated with regard to Condition 20, that is where they have the open space, pedestrian plaza, and rear parking plan, and per our Code this Commission could waive those requirements.

Mr. Greg Bachman stated there have been a couple of significant changes on traffic since the Commission saw this a couple of months ago. He stated the previous plan had access at Refugee and Windmiller, and also at Birchwood Street and S.R. 256. Mr. Bachman stated he much preferred the plan with two access points to two traffic signals on two arterial streets, however, the applicant has indicated they could not work out the Birchwood Street access with the property owner. Mr. Bachman stated the current plan has only the one access point at Windmiller and Refugee. He continued another significant change was the way the access road went through the site and is now turned to the west. Mr. Bachman stated he would require a traffic impact study and to look at the Windmiller/Refugee intersection, the Refugee/S.R. 256 intersection, and to the west the intersection at Refugee/Fuller’s Way. He stated he has asked the developer to project traffic out for ten years out. Mr. Bachman stated even without this development, to get acceptable levels of service, three things would need to be done. On S.R. 256 a dedicated right-turn lane onto Refugee Road, southbound S.R. 256 to westbound Refugee Road; a second left-turn lane on Refugee Road eastbound to northbound S.R. 256; and, at Fuller’s Way a westbound left-turn lane, westbound on Refugee, southbound on Fuller’s Way. He stated then with Phase 1 and Phase 2 development a double left-turn lane on westbound Refugee Road to southbound S.R. 256 would be needed. Mr. Bachman stated he has also asked the developer to make the Windmiller extension a 36-foot wide pavement. Mr. Bachman further reviewed the report he had provided the Commission regarding traffic improvements. Mr. Sauer stated he was trying to envision how this would impact the Refugee and S.R. 256 intersection, and Mr. Bachman stated certainly there would be more traffic at the intersection, but given the large amount of traffic going through there now this would be a relatively small percentage of that. Mr. Bachman stated one of the advantages he would see is that the tax revenue generated from this development, where if we TIF’d that, it would give us some money to make some of these improvements. Mr. Blake clarified the developer had done a preliminary traffic study for this parcel since the last meeting. Mr. Bachman stated the applicant did a good job of getting the summary of the preliminary traffic study to him, he received it Wednesday, so he has not had time to review it fully. Mr. Blake further clarified this will be the only traffic study the City would require, and Mr. Bachman stated the City could, however, go back and request more details on the traffic study.

Mr. Ben Hale stated he was the attorney representing the applicant and he hoped he would be able to address any questions the Commission may have. Mr. Hale stated when they began this project they had talked with the staff about potential uses of this property, and the one use they were very confident they wanted to do was the soccer facility. Mr. Hale stated there are more soccer players in Pickerington than any other place in central Ohio other than Dublin. He stated these facilities are highly popular and heavily used by the community, and they looked at this as a recreational amenity for the community, because that is who would be using it. Mr. Hale further stated that because there is a need does not necessarily mean that you should be allowed to do it; it must be done in a way that meets the community standards. He stated they thought a lot about that, and they felt they had come up with some pretty good ideas about how to do it in a way that was appropriate. Mr. Hale also stated they believed the office phase would be very successful and they felt a four-year build out was relatively realistic. He stated he is seeing the market starting to respond and he sees the demand here for this kind of use. Mr. Hale stated the intent is to construct the facility to resemble a barn and some photographs of examples of had been included in the Commission’s packets. Mr. Hale stated with regard to the TIF, he had done some calculations and if the road improvements were done in 2014, based on the estimated schedule, that would be almost $300,000 of cash in the bank at that point. Mr. Hale stated his experience has been that you want to let that cash go up and get a good cash flow before any bonds are sold or anything like that. He stated they would work with council to ensure that there are sources of funds when the need for the roads are there. He stated they believe this project should happen, that it will be successful, and that there is a demand for the soccer facility.

Mr. John Sheddenhelm stated he was present representing the Pickerington Youth Soccer Association, and they have approximately 1,000 kids involved in the soccer program. He stated this facility would definitely be used by the community. Mr. Sauer stated he still had the concern of only one access point, and when that traffic spilled out it would all to down S.R. 256, Refugee Road, and Windmiller Drive. He stated he had no problem with the soccer facility, but he did have concern regarding traffic. Mr. Hale stated the traffic study shows with that soccer facility would put 83 cars in the P.M. peak in that intersection over an hour. Mr. Schultz stated he would just add that in the initial discussions concerning a TIF it was pointed out that it would have to be structured similar to the Equity TIF where there is no risk to the City. He stated they have not gotten into numbers as yet, because before they move forward they want to make sure they have a concept approved at this level. Mr. Hale stated they were fully aware of what would be expected.

Mr. Nicholas stated he concurred with the engineer’s recommendation for the three 12-foot lanes at the entry off of Refugee, and with regard to the need for a variance in the building height, he understood the Code did not require a variance as long as Planning and Zoning Commission agreed on a specific height. Mr. Schultz stated he was calling these variances because if they went to the Board of Zoning Appeals they would be variances, however, the Planning and Zoning Commission can approve all of these so-called variances or deviations. Mr. Nicholas stated he brought that up because specifically building height was based on the average mean height of all the roof lines. Mr. Schultz stated he would just remind everyone that this is a preliminary approval and when it come for final approval each building would come in for a Certificate of Appropriateness for architecture, landscaping, site plan, and lighting. Mr. Binkley stated he liked the use and the rezoning of this property, and he knew how much use it would get, but his concern was also the traffic and questioned if there was a possibility in the future for this development to connect to the traffic signal at Birchwood. Mr. Hale stated they have had conversations with the owner of the shopping center. He stated the entrance at that light is a mess right now, it is not marked, it is not lined, and the kinds of things the City wanted to see if that connection were made would cost most of that northern tier of parking. He stated the shopping center owner had said he did not have an issue if they had an access through there, but they cannot afford to lose all of that parking. Mr. Hale stated they would love to have access to that light because it would give them two accesses to the development. Mr. Bosch stated his concern is also the traffic and he would ask if the traffic impact study did not include a weekend, such as Saturday, peak time, if a Saturday could be included he felt that would take some of the soccer issue out because there is obviously still a main line peak since S.R. 256 is the main thoroughfare. Mr. Bosch stated his other concern was with regard to the parking space variance for Sub-Area B and the thirty percent reduction. Mr. Bosch clarified that this would not be an issue for the developers. Mr. Bosch stated he was glad to see development coming and he thought this would be a good development. Mrs. Evans concurred in the traffic concerns, and stated she would like to see something in the traffic study regarding the peak hours on Sunday. Mrs. Evans further stated she felt this was a wonderful idea. Mr. Hackworth stated he did like the way the roads were redesigned since the Birchwood access is not available. He stated he does have concern about the right-in/right-out and his concern is that we are starting a precedent to of violating our access management plan. Mr. Hackworth stated his concern is about vehicles taking a shortcut around the back of the shopping center and going to the Birchwood light. Mr. Blake stated he agreed with Mr. Hackworth that traffic would take a shortcut through the back of the shopping center to get out to S.R. 256 at Birchwood, and there would be no control over that. Mr. Bosch questioned in the spirit of trying to stay consistent with the access management plan, would the developer be able to live with a right-out only at that location. Mr. Schultz stated when the access management plan was adopted it was noted that any revisions would be per a traffic impact study, so if the City Engineer recommends a revision based on a traffic impact study, Council could consider it. Mr. Bosch stated he felt there was a true reason for allowing the right-out only, but he did not see the same benefit for the right-in, especially as close as it is located to the signalized access point. Mr. Sauer stated he agreed with Mr. Bosch regarding the right-out access. Mr. Sauer clarified that the Big Bear has an approved site plan so any property to the east cannot be addressed today. Mr. Schultz stated the property owner has given the City an easement to the light, but if he does not agree with the easement we will have to access this site at another location. Mr. Schultz stated while this is not an ideal situation, it is better than having a second access to this site somewhere else. Mr. Blake stated as he understood it, unless the preferred text were removed, it is part of what is being approved or disapproved. Mr. Schultz stated that was not correct, that Condition 19 states that the permitted uses for the development shall be per the zoning code to be consistent with Section 1282.11. Mr. Blake then clarified that even though the preferred text is being requested, it will not have any bearing on what is approved tonight. Mr. Schultz stated that was correct. Mr. Hale stated they typically try to eliminate as many of the conditions as they possibly can by the time it gets to Council so it is in compliance with the recommendations of staff. Mr. Blake stated he is very concerned with the right-in/right-out, and it appeared Chief Taylor also had concerns on that issue. Mr. Blake stated he also felt the traffic going through the back of the center getting to Birchwood was an issue. Mr. Blake continued that he would feel a little more comfortable with having only a right-out access.

Mr. Bosch moved to approve the Rezoning and Preliminary Development Plan that complies with the minimum zoning code requirements with the 20 conditions recommended by staff and listed below, and modifying the site plan to include the three 12-foot lanes at the throat and to modify the right-in/right-out to a right-out only;

2. That a dedication plat and legal description shall be prepared for the City to accept and record the right-of-way as needed along Refugee Road per the City Engineer.

3. That Sub-Area A shall have a 25-foot wide cross-access easement along the entire eastern portion of the property per the City Engineer requirements.

4. That the sanitary reimbursement fee shall be paid prior to construction drawing approval for each lot.

6. That a sidewalk shall be extended along all the public and private streets.

7. That the proposed development shall meet all other City development requirements.

8. That the site plan shall be in compliance with the tree preservation ordinance.

9. That the site plan shall be in compliance with the Violet Township Fire Department requirements.

10. That the rear yard building setback for the 4 Season Sports Complex (Sub-Area A) shall be reduced form 30-feet to 20-feet.

11. That the maximum building height for the 4 Season Sports Complex (Sub-Area A) shall be increased from 35-feet to 45-feet.

12. That the front yard parking setback for the 4 Season Sports Complex (Sub-Area A) shall be reduced from 18-feet to 7-feet.

13. That the parking space requirements for the 4 Season Sports Complex (Sub-Area A) shall be modified to allow 194 parking spaces.

14. That the parking setback along the proposed private street for Sub-Area B (office buildings) shall be reduced from nine-feet to one-foot.

15. That the northern side yard building setback for Sub-Area B (office buildings) shall be reduced from 15-feet to 7-feet.

16. That the front yard building setback adjacent to the public street in Sub-Area B (office buildings) shall be reduced from 30-feet to 20-feet.

17. That a parking space variance for Sub-Area B (office buildings) shall comply with Section 1282.11(e).

18. That the eastern building setback for Sub-Area B (office buildings) shall be reduced from 25-feet to 15-feet.

19. That the permitted uses for the development shall be per the zoning code to be consistent with Section 1282.11.

20. That the proposed development shall comply with the flexible requirements in commercial districts per Section 1282.14.

Mr. Sauer seconded the motion. Roll call was taken with Mr. Hackworth and Mr. Blake voting “Nay,” and Mr. Sauer, Mrs. Evans, Mr. Binkley, Mr. Bosch, and Mr. Nicholas voting “Yea.” Motion passed, 5-2.

The Planning and Zoning Commission recessed at 9:45 P.M. and reconvened in open session at 9:50 P.M.

B. Review and request for motion to approve an amended Comprehensive Sign Plan for Building and Ground Signage for Dairy Queen at 541 Hill Road North. (TABLED, 09/08/09) Mr. Sauer moved to remove from the Table; Mr. Hackworth seconded the motion. Roll call was taken with Mr. Nicholas, Mrs. Evans, Mr. Hackworth, Mr. Sauer, Mr. Blake, Mr. Bosch, and Mr. Binkley voting “Yea.” Motion passed, 7-0. Mr. Henderson reviewed the report provided to the Commission members and stated the applicant is proposing to amend building and ground signage for the Dairy Queen at 541 Hill Road North. Mr. Henderson stated the applicant is proposing to change the current signs on the west and east elevations of the building with the new logo, and have stated they are no longer looking to add the “Restaurant” sign to the Comprehensive Sign Plan. In addition, they are proposing a sign face change for the ground sign. Mr. Henderson stated staff supports the Comprehensive Sign Plan that complies with the minimum zoning code requirements and the following conditions:

1. That the “Restaurant” sign on the west elevation shall be removed.

2. That there shall be no overflow light created by the spot lights for the building sign on the west elevation.

Ms Lou Ann Todd stated she is the owner of the Dairy Queen and she would like to clarify that the two-color logos that the Commission received in their last packets is not a logo for building signage, but are for newspaper print, coupons, etc. She stated the only allowed building signs are the four color logos, and she had provided a letter from the American Dairy Queen Corporation, Chief Development and Legal Officer, detailing this to the Commission this evening. Ms Todd stated she has agreed to remove the “Restaurant” sign from the west elevation.

Mr. Binkley stated in the past this Commission did allow the KFC sign more than three colors when their logo was revised. Mr. Binkley stated he understood the importance of branding, and he also understood we had a Code and as soon as you start making exceptions it opens up a flood gate. Mr. Binkley stated given corporate branding, he would not have a problem with this sign. Mr. Bosch stated he has always felt we should have consistency, however, in this case since it has been clarified that no other logo is authorized, he could reluctantly approve the sign with the four colors. Mrs. Evans stated she understood a lot of thought had been put into the three-color concept, but she was not sure of the reasoning behind that. Mrs. Evans stated due to the circumstances of this case, she could support the sign with the four colors. Mr. Hackworth stated his concern is with this being our Code and how this hampers staff from enforcing the Code. Mr. Hackworth further stated since this is the international logo he would not have a problem approving this, but questioned what kind of legal issues we could have with other franchises wanting four or five color signs. Mr. Banschefsky stated there is a hardship issue here that has been discussed in terms of companies going out of business, and he felt that distinguished this case. Mr. Banschefsky stated, however, if this is something that we are going to keep doing then we need to look at the sign Code and make everyone comfortable with it. Mr. Sauer stated he understands where the applicant is caught in the middle since corporate will not even allow her to have an alternate sign. Mr. Sauer stated if we have a situation such as this, perhaps our Code can be flexible enough that if there is a specific brand logo that cannot be changed we may want to have our Code take that into consideration. Mr. Sauer stated he is not condoning four or five colors in the future, but he felt in this particular circumstance he could support this signage. Mr. Nicholas stated he would not be supporting this. Mr. Blake stated as he understood it there would be four colors on the building signage and a total of five colors on the monument sign. Ms Todd stated she was not changing the monument sign at this time, but Mr. Henderson suggested she apply at this time so if they want to change it in the future they would not have to come back. Mr. Blake inquired if that could be four colors, and Ms Todd stated she could do that. Mr. Blake clarified then that the proposed ground sign would have four colors. Mr. Sauer moved to approve the amended Comprehensive Sign Plan with the stipulation that the ground sign and the wall sign shall have no more than four colors; Mrs. Evans seconded the motion. Roll call was taken with Mr. Nicholas voting “Nay,” and Mr. Binkley, Mr. Hackworth, Mr. Sauer, Mr. Blake, Mr. Bosch, and Mrs. Evans voting “Yea.” Motion passed, 6-1.

C. Review and request for motion to approve Nonresidential Design Standards Certificate of Appropriateness for Landscaping (Monument) for Violet Grange located at 36 Lockville Road. Mr. Henderson reviewed the report provided to the Commission and stated the applicant is proposing a granite bench style monument located in the southwestern corner of the site to honor the Violet Grange. Mr. Henderson stated staff supports the Certificate of Appropriateness for Landscaping (Monument) that complies with the minimum zoning code requirements. Mr. Bosch questioned if meeting the minimum zoning requirements meant brick half way up the sides. Mr. Schultz stated it is difficult to determine exactly what this is, is it a sign, a memorial, or what. Mr. Bosch stated to keep within standards this Commission required Epiphany Lutheran put brick on their sign even though it was a beautiful looking granite. Mr. Schultz stated that was brought in as a sign and this has been brought in as a memorial. He stated further the Township is purchasing the property and he understood the intent was to demolish the building but the people from the Grange requested this as a memorial to that building. Mr. Binkley stated with the location it is a sign, it does not comply with our requirements and he would not support it. Mr. Bosch stated if this is treated as a sign it does not in any way meet any of our criteria. Mr. Schultz stated he struggled with this as he was not sure if it should be treated as a site plan revision or a landscape revision, and now the Commission has brought up it is a sign. Mr. Binkley stated he feels it is a monument sign. Mr. Schultz stated if the Commission would like to Table this item, he could request the applicant come to the next meeting and explain their intent. Mr. Binkley stated the reason he considers this a sign is because it is identifying the property and the location is on the hard corner. Mr. Bosch stated he understood the intent, but he did not feel this was the right use of it. Mr. Sauer questioned if it would change the concept if they moved the location to the back of the property instead of on the corner. Mr. Sauer moved to Table; Mr. Bosch seconded the motion. Roll call was taken with Mr. Hackworth, Mr. Binkley, Mr. Blake, Mr. Nicholas, Mrs. Evans, Mr. Bosch, and Mr. Sauer voting “Yea.” Motion passed, 7-0. (TABLED)

D. Review and request for motion to approve a Conditional Use Permit for an Outdoor Patio for LaFogata Grill located at 1849 Winderly Lane. Mr. Henderson reviewed the report provided to the Commission. Mr. Henderson stated staff supports the Conditional Use Permit that complies with the minimum zoning code requirements and the following conditions:

1. That the outdoor furniture shall be reserved and subdued in style and color and constructed of ferrous (iron based) or non-ferrous (aluminum, etc.) metal.

2. That no sound from the patios emanating from loudspeakers or other such sound amplification equipment shall be audible at the property line.

3. That the patio shall be vacated at midnight.

Mr. Jerry Schwarz stated he was present representing the applicant and Mr. Alvarez, the property owner, is also present to answer any questions. Mr. Schwarz stated this building was originally built with a small patio and when Mr. Alvarez purchased the property in 2007, he expanded the patio area. Mr. Schwarz stated earlier this year it was discovered by the Fire Department that the patio did not fully comply with the conditional use permit and in July they had asked this Commission to approve the existing fencing material. Mr. Schwarz stated this Commission did not approve that material, and they have brought a new plan before them this evening. Mr. Schwarz stated the applicant agrees with staff conditions with the exception of Condition No. 2. Mr. Schwarz stated this property is surrounded by commercial property and the closest residential is one-quarter of a mile away in the City of Columbus. He further stated there have been no complaints from anyone about sound at this location and there has been live music there for two years. Mr. Schwarz stated he would propose that Mr. Alvarez be limited to having any kind of music on the property until 9:30 P.M. Mr. Sauer stated the proposed patio looks great, but with regards to the noise, he could not support that request. He stated there have been too many issues lately with other establishments and it has been extremely difficult dealing with them. Mr. Hackworth clarified that the music would be stopped at 9:30 P.M., and the patio would close at midnight. Mr. Hackworth stated considering the location of this property he did not have a problem with that. Mr. Hackworth clarified that should there be complaints, this Conditional Use Permit could be revoked. Mr. Schultz stated a violation would be taken to Mayor’s Court, and further clarified this would remain with the property unless a new owner came before this Commission for a revision. Mr. Sauer stated then he understood that a single citation could be grounds for revocation. Mr. Banschefsky stated if it were a proper citation where there has been a warning given, time to comply, then the answer would be yes. Mrs. Evans stated her concern was if the noise would be a problem for the Hampton Inn and questioned if it would be possible to get a letter from them stating that they do not have a problem with this establishment. Mr. Schwarz stated he would get a letter from the Hampton Inn stated that Mr. Alvarez and the LaFogata restaurant have been sensitive to the noise levels in the area and he has never had a problem with them, but he understood if he did he could go to Mr. Alvarez and they would work together to get satisfaction and would provide it to Mr. Schultz. Mr. Bosch stated he thought the patio would look really nice and he felt in this area he could handle the condition being changed regarding the music until 9:30 P.M. Mr. Binkley stated he would abstain from commenting or voting on this issue. Mr. Nicholas stated he would be satisfied with the 9:30 P.M. time limit for music and a letter from the Hampton Inn. Mr. Bosch moved to approve the Conditional Use Permit for an Outdoor Patio for LaFogata Grill with the following conditions:

1. That the outdoor furniture shall be reserved and subdued in style and color and constructed of ferrous (iron based) or non-ferrous (aluminum, etc.) metal.

2. That all music shall cease at 9:30 P.M.

3. That the patio shall be vacated at midnight;

Mr. Nicholas seconded the motion. Roll call was taken with Mr. Binkley abstaining, Mr. Sauer and Mr. Blake voting “Nay,” and Mr. Bosch, Mr. Nicholas, Mr. Hackworth, and Mrs. Evans voting “Yea.” Motion passed, 4-2.

E. Review and request for motion to approve Nonresidential Design Standards Certificate of Appropriateness for Landscaping and Lighting for Volunteer Energy Services located at 790 Windmiller Drive. Mr. Henderson reviewed the report provided to the Commission and stated staff supported the Certificate of Appropriateness for Landscaping and Lighting that complies with the minimum zoning code requirements and the following conditions:

1. That the pine trees located along the western property line shall be a minimum of seven-feet high at installation and located between seven to ten feet on center in a staggered alignment to create a continuous opaque screen.

2. That the landscaping adjacent to the existing building shall achieve compliance with the approved Certificate of Appropriateness for landscaping in April 2007.

Mr. Michael Kolb stated he was present to answer any questions anyone might have. Mr. Sauer moved to approve the Nonresidential Standards Certificate of Appropriateness for Landscaping and Lighting for Volunteer Energy Services with staff recommendations; Mr. Hackworth seconded the motion. Roll call was taken with Mr. Sauer, Mrs. Evans, Mr. Binkley, Mr. Bosch, Mr. Nicholas, Mr. Hackworth, and Mr. Blake voting “Yea.” Motion passed, 7-0.

4. REPORTS:

A. Planning and Zoning Director.

(1) BZA Report. Mr. Schultz stated at their meeting last month the Board of Zoning Appeals approved two variances for single family residences and they will not meet this month.

(2) FCRPC. Mr. Henderson stated the Fairfield Regional Planning Commission met and approved several extension requests.

5. OTHER BUSINESS:

A. Outdoor Patio Discussion. Mr. Schultz he had a conversation with the Pizza Cottage regarding his options and they would be getting back with him.

B. Commission Discussion. Mr. Sauer questioned if Conditional Use Permits could be issued with an expiration time so that it would have to be renewed. Mr. Banschefsky stated that has been done, although rarely, and you are better off if you can get the applicant to agree to that type of condition. Mr. Banschefsky stated he did not feel this is something that you would want to do routinely, and he would like to have a chance to look at this. Mr. Sauer stated he would request some information back on this for the next meeting.

6. ADJOURNMENT. There being nothing further, Mr. Nicholas moved to adjourn; Mr. Sauer seconded the motion. Mr. Nicholas, Mrs. Evans, Mr. Hackworth, Mr. Sauer, Mr. Blake, Mr. Bosch, and Mr. Binkley voted “Aye.” Motion carried, 7-0. The Planning and Zoning Commission adjourned at 10:58 P.M., October 13, 2009.

RESPECTFULLY SUBMITTED:

___________________________

Lynda D. Yartin, Municipal Clerk