PIKE TOWNSHIP BOARD OF ZONING APPEALS
August 13, 2008 - 7:00 p.m.
Members present
were Nancy Snyder, Audrey Malavite, Jerry Werner, Jerry Eibel and Bob Burkhart,
presiding. Also present were Zoning
Inspector, Sharon Perrine, Trustees, Douglas Baum,
Chairman, Bob Burkhart opened
the meeting by introducing the Board Members.
The legal ad, as published in The Press News, July 24, 2008 was read and
Mr. Burkhart proceeded by reading the following:
This Appeal #338, Valley
Mining, Inc. 4412
This matter comes back to the
Pike Township Board of Zoning Appeals, upon remand from the Stark County Court
of Common Pleas, Judgment Entry docketed June 17, 2008, and the case of: Ernie
Berry, et. al., vs.
In the referenced Judgment
Entry, the Court finds:
“As correctly noted by
In addition, in a footnote
the Court wrote:
“The Court has reviewed the
transcript that was submitted and finds that there were no procedural defects
with respect to the hearing held and evidence received. As such, the Court finds that an evidentiary
hearing to supplement the record would be necessary. However, the procedural defect mandates that
the decision be reversed as it deprives the Court of basis for the
administrative agency’s decision.”
Mr. Burkhart: Do I have a motion?
Mr. Eibel: I move that, based upon the Judgment Entry of
the Court of Common Please, this board shall not receive any additional
testimony or evidence but shall only make the required findings of fact and
conclusions of law from the transcripts of the earlier public hearings.
Mrs. Malavite seconds the
motion and upon a roll call, the vote resulted as follows:
Nancy Snyder Yes
Audrey Malavite Yes
Jerry Werner Yes
Jerry Eibel Yes
Bob Burkhart Yes
Mr. Burkhart: The motion, having unanimously passed, the
next order of business is to make Findings of Fact and Conclusions of Law,
based upon the transcripts of hearing from the public hearings held on January
9, 2008 and February 11, 2008, do I have a motion.
Mrs. Snyder: I move to adopt as follows:
Findings of Fact:
1. the
subject real property is already under a Conditional Use Permit for surface
mining, as granted
in Pike Township Board of Zoning Appeals case number 334;
2. the
Applicant is interested in working in the area of the requested setback
variance so that he
can perform work without going onto a public road;
3. the
variance area has previously been mined and contains existing “mine spoils”, abandoned
mine equipment, junk, debris and other materials that will be removed and remediated
as part of the mining operation if the requested variant is granted;
4. within
the variance area there is a large ditch with abandoned equipment and junk that
will
be removed and the area reclaimed;
5. the
entire variance area will be reclaimed if the variance is granted;
6. the
Applicant has already received a variance permit from the State of
7. the
large trees within the variance setback area will not be removed or impacted;
8. the
Pike Township Zoning Inspector, Sharon Perrine, reported that the requested
variance and
cleanup of the existing “mine spoils”,
abandoned mine equipment, junk, debris and other materials
that will be removed and remediated as part of the mining operation if the requested
variance is granted will benefit the entire area and Township once the property is reclaimed;
Conclusions of Law:
1. practical
difficulties exist to warrant a variance of 50 feet to reduce the setback requirement,
adjacent to residential properties, from 150 feet to a lesser distance of 100
feet;
2. even
though the real property may yield a reasonable return without the requested
variance, there
is a benefit to the property by having the nuisance condition abated and
remediated as part
of the mining reclamation process;
3. the
variance is not substantial based upon all of the facts and circumstances
before the Board of
Zoning Appeals;
4. since
the trucking of mined minerals will not be on public roads and since the “mine
spoils”, abandoned
mine equipment, junk, debris and other materials will be removed and remediated
as part of
the mining operation, the essential character of the neighborhood will not be substantially
altered and adjoining properties will not suffer - but will in fact, benefit -
by granting
the requested variance;
5. the
requested variance will have no impact upon the delivery of government
services;
6. although
the property owner and applicant acquired the property with knowledge of the zoning
regulations the subject real property is already subject to a Conditional Use
Permit for surface
mining, as granted in Pike Township Board of Zoning Appeals case number 334, so
that there
should be no additional or substantial impact upon the general area by granting
of the
requested variance;
7. although
the property owner’s predicament of having a nuisance condition may feasibly be
prevented by
a clean-up of the nuisance conditions within the variance area, the existing Conditional
Use Permit sides in favor of granting the requested variance;
8. the
spirit and intent behind the zoning regulations will be observed and
substantial justice still be
done if the variance is granted.
Mr. Eibel seconded the motion
and upon a roll call the vote resulted as follows:
Attorney Robert Rubin, at
this time requested to be heard before a vote was taken. Mr. Burkhart replied that no discussion would
be heard.
VOTE RESULTS: Nancy Snyder Yes
Audrey Malavite Yes
Jerry Werner Yes
Jerry Eibel Yes
Bob Burkhart Yes
The Motion having unanimously
passed the requested 50 feet variance, as decided on February 11, 2008, is
affirmed.
Mr. Burkhart asked if there
was any other Zoning Business. Mr. Scott
Brown stated that Valley Mining Company was supposed to test their water wells
before they started blasting. That
testing has not yet been done. Mr.
Burkhart requested Zoning Inspector, Sharon Perrine, to inquire why this hadn’t
been done. Ms. Perrine stated that there
would not be any blasting on the I & L Ltd. property; the area Mr. Brown
was referring to is to the Dursky property (appeal #333) and she would check,
but she was almost sure they had not done any blasting on that property. She asked Mr. Brown if he had received any
notice that they would be blasting. Mr.
Brown stated that the mining company had not started blasting yet, but the water
well testing was to be done before that blasting started. Ms. Perrine stated she would investigate
further and inform Mr. Brown .
Mr. Werner made a motion to
adjourn the meeting. Seconded by Nancy
Snyder.
ROLL CALL: Nancy Snyder Yes
Audrey Malavite Yes
Jerry Werner Yes
Jerry Eibel Yes
Bob Burkhart Yes
The Meeting was adjourned at
7:16 p.m.
Minutes read and approved:
Nancy Snyder (date)
Audrey Malavite (date)
Jerry Werner (date)
Jerry Eibel (date)
Bob Burkhart (date)