12/05/2002 Minutes - Laserfiche WebLink

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enter/exit. Mr. Conway pointed out it is a planning issue and not a zoning issue. There was discussion between residents and board members regarding the easeinent with CVS. Mr. O'Malley said that his understanding is that a restaurant facility like this one would require two driveways. As it stands right now, the city has not been provided with the easement information relative to this applicant's access to that driveway. Absent that documentation, the applicant would be back in front of the board asking for a variance to go out one driveway instead of having two driveways. Mr. Kremzar said he is concerned about the safety of people going through CVS, and getting in and out of cars. Mr. Konold said there is too much traffic for the facility. Mr. Maloney said he is concerned about tractor trailers coming in to unload and tying things up. He asked if there is enough room for those vehicles to turn around without interfering with customer parking or jeopardizing customers going back and forth. Mr. Willse explained that their deliveries are prior to business hours and they only get 3 deliveries per week. Mr. O'Malley said he did some research on the subject of minimum lot size which is the primary issue before the board. The zoning standard is presumed to be constitutional. It is a legislative determination that has been made and it is enforceable until it is set aside by a court. He thinks the documentation that has been presented to the board needs to be taken with a grain of salt. To the extent that the docuinentation might suggest that because this site is bigger than other sites, or that this site should be compared to other restaurants, or the site should be entitled because other restaurants exist in that capacity, is not appropriate. A lot was created after the effective date of the code and it stands as written. Many of the restaurants referred to were built on lots that were build-able and grand- fathered in and the new standard could not be applied. He believes the applicant's reference to 1165.04 gives a highlighted provision of that code section. To the extent that he means to suggest that he is exempt from the minimum area requirement, he is mistaken. This is the code section that would be quoted by one of these non-conforming, pre-existing lots. The applicant wouldn't be granted that status if the same owner had side by side lots that if put together would meet the minimum area requirement. That is why the reference to "no adjoining vacant lot or parcel was owned by the same owner." Mr. O'Malley thanked Mrs. Smith for drawing attention to the fact that the Planning Commission considered this inatter and unanimously voted to recommend against the granting of the variances presented. It is important to remember that, as well as to incorporate the Planning Commission's records and the comments made. On the subject of the existing condition of the driveway apron, he would advise that if the applicant was entitled to have the 34 ft. wide apron as it exists, there would be no application for a variance. It is the city's position that he is required to meet the code on the driveway width. He said it is his opinion that you don't acquire a right to a driveway apron in the absence of a use of the parcel. He would recommend that the board consider addressing this matter in two steps. The first is the minimum area requirement because that variance controls the balance of the application. If the lot is of insufficient size then the matter will not proceed. He would recommend that if they address the other variances, they be made conditioned upon this applicant's presentation and the development plan as designed. There should not be variances for a hypothetical development. Mr. Konold asked for clarification from Mr. O'Malley. Mr. O'Malley said he is suggesting they deal with the lot size issue separate from the balance of the variances as requested. Mr. Conway agreed and said if the board isolates the first variance and votes on it, if it is a negative vote, there is no need to address the remainder of the issues. 1VIr. Maloney said they will address the first variance request separately. 7. Maloney made a motion to grant Wendy's Old Fashinoned Hamburgers, 3785 Clague Road, its request for variance (1123.12), which consists of a restaurant and sign package, and that the following variance be granted: 1. A.47 acres variance for lot area, (code requires 1.5 acres, applicant shows 1.03 acres), section (1139.06). The motion was seconded by W. Kremzar and unanimously denied. Variance Denied. Mr. O'Malley said the applicant would be entitled to the board's consideration of the balance of the variances if he wishes. Mr. Maloney said the board will consider items #2, 3, 4, 5, and 7 as amended. 10