GREEN Temporarily ending a months-long debate over a commercial development on Massillon Road, the five-member Green board of zoning appeals unanimously overturned a June 21 planning commission approval of the development.
At issue was a commercial development on Massillon Road, to include a 22,000 square foot grocery store, as well as a restaurant with outdoor seating, which was granted conditional approval by planning commission at the June 21 meeting.
Residents on April Drive and other nearby streets argue that the development will eliminate a natural buffer between the neighborhood and commercial activity on Massillon Road, noting that residents have successfully opposed commercial development on the parcel for decades.
"I’m not convinced planning commission had adequate information beforehand and I’m not convinced all the facets were discussed," said BZA member Joel Reed, who presented the motion to approve the appeal. "And I’m not convinced, when this (conditional use) was allowed, that they envisioned a development of this size."
At the outset of the meeting, BZA chairman Robert Incorvati explained, however, that the board was not ruling on the validity of planning commission’s decision. Rather, the BZA was charged with determining if there were any procedural or substantive errors made by the planning commission in reaching its decision.
Steven Hobson, attorney for the April Drive residents named in the appeal, pointed to the city’s regulations regarding the announcement of public hearings, stating that several of these were not included in the notice to residents of the June 21 meeting. These included the requirement that a description of the project size and scope, where public records regarding the project could be reviewed, and that public comment and written comments were accepted be included in the notice.
Hobson also argued that the planning commission had several legal options for making a motion to reconsider its decision at a July 19 meeting, but failed to take them. At that meeting, planning commission chairman Dwight Yoder said that since a motion was not formally presented - even though planning commission member Dave Plum, who was absent at the June 21 meeting, requested a motion to reconsider – there was nothing to discuss.
The residents’ third argument stated that the development itself was not harmonious with the surrounding neighborhood. April Drive resident Michael Cline said the commission’s decision to allow the conditional use of mixed commercial in the B2 zoned property – in which office space is the primary allowed use – on the entire property, was effectively a re-zoning of the property.
April Drive resident June Weaver said she contacted Planning Director Wayne Wiethe in March, when she heard bulldozers on the property. She said that Wiethe informed her that soil testing was being done on the site, but did not mention TWL - which is currently under land contract with property owner, SUMA – or the proposed project.
"Later on we found out they had discussions at a planning commission meeting with the developer in January and one of the planning commission members, Mr. Plum, expressed concern with (the development) next to residential," Weaver said.
Local Real Estate developer, Linda Hartong, also testified that, in her opinion, the development would significantly impact negatively housing values on April Drive, given the number of comparably valued properties elsewhere in the city.
In his summary statement, Hobson called the planning commission’s decision "arbitrary and capricious."
TWL Development response
Benjamin Ockner, attorney for TWL Development, said the only "arbitrary and capricious" decision that could be made would be the BZA’s upholding of the resdidents’ appeal.
Ockner, along with TWL managing partner, Walid Lababidi – himself a Green resident – and other members of the development team presented evidence that TWL had met all requirements of the city and had, in fact, agreed to less impactful changes to the plan – such as creating a nearly 100 foot setback from the April Drive neighborhood when only 25 is required and creating 13 feet of mounding, landscaping and fencing along the perimeter of the development.
Commercial Real Estate broker Michael Weiss of Colliers International – the firm hired to market the development, explained decline in the office development market, as well as pointing out that if the property was developed as it was zoned, residents could be faced with a 60 foot office building with "24/7 emergency lighting."
Moreover, Weiss said, the city’s own 2014 Master Plan notes that mixed commercial is the preferred development option for the property.
Green Law Director Diane Calta said that, in her opinion, the notice met the requirements by being delivered within the required 10 days prior to the June 21 meeting, noting the time and place of the meeting and indicating that the topic of the meeting was a "site plan review."
While the notice did not specifically note that residents could attend, speak or provide written correspondence, Calta said the fact that the letter was delivered to them could reasonably infer these things.
Following the BZA ruling, it was unclear what, if any action, would be taken by TWL. Both Lababidi and Ockner declined comment.