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Planners divided over Farmers Market fence
(by Sue Reid - May 06, 2009)
Planners divided over Farmers Market fence
By SUE REID
A proposed new fence for in front of Miles Farmers Market in Solon drew objections from an adjacent property owner at last week's meeting of the city planning commission.
Miles Farmers Market owner Frank Cangemi said the proposed 4 1/2-foot-high, three-rail fence to be located just inside the Miles Road right-of-way line, is intended to enhance and showcase the property. "I have no other intention then to make the place look nice," he said. Instead of replacing the rails on the current fence, he will have them torn down, he said.
But John D. Wheeler, an attorney representing the J. Lally Trust, which is the adjacent property owner to the east, voiced opposition to the proposal. He said his client does not object to the replacement of the current fence, but the extension of it where there is not one.
Mr. Cangemi is proposing extending the fence approximately 180 feet eastward across the front of the adjacent residence that Miles Farmers Market owns. The residence and store are on one lot. As with the existing split-rail fence, the proposed new fence would be located in the front yard of the property, just inside the right-of-way line.
However, city code requires that fences in commercial zoning districts not extend in front of the building on the property. Therefore, while the location of the existing wood fence is grandfathered, any extension of the fence would require a variance, Solon Planning Director Robert S. Frankland said.
"My client objects to the grant of any variance to the code for the extension," Mr. Wheeler said. "As any grant of a variance requires conformity with the Solon codified ordinances as well as standards set forth in Ohio law, my client asks that a careful review of those standards be made without regard to the fact that a 'grandfathered' portion of the requested fence exists currently."
In an April 28 letter to the commission, Mr. Wheeler cited Duncan vs. the Village of Middlefield, which illustrates the need to analyze any request for a variance independently. He said the additional fencing is being planned for aesthetic purposes and does not qualify under Duncan vs. Middlefield.
That case lists seven nonexclusive factors to be considered by an administrative body to approve a variance, as well as the legal standard for approval, Mr. Wheeler said. "Those factors include whether the property owner will not be able to enjoy the beneficial use of the property without the variance and whether the variance is substantial," he said. "On these two issues alone, the variance request must fail, as the property owner is able to enjoy the beneficial use of the property without the extension of the fence and extending a 'grandfathered' fence is certainly substantial."
The sole reason for the extension is decorative purposes, Mr. Wheeler said. He said that one cannot even tell if the extended portion of the fence is part of Miles Farmers Market.
Commission member William M. Mazur said Mr. Wheeler presented a good argument. He said he is more than willing to support the existing fence, but there is certainly no hardship for the extension. There has to be a hardship involved to grant a variance, he said.
"I have no hidden agenda," Mr. Cangemi said. The fence would be strictly for beauty and to draw attention to the property and Miles Farmers Market, he said.
Mayor Kevin C. Patton, a commission member, asked Mr. Cangemi if he would consider lowering the fence. Fences in front yards throughout the city are 36 to 42 inches high at the most, he said, and the plan seems a little tall to be right on the street.
Commission member Roger C. Newberry said the proposal should be reviewed by the city's safety forces, due to the traffic volume on Miles Road and to the proximity of the fence to the right of way.
A motion was approved that input from the safety forces be provided regarding line-of-sight issues prior to the commission acting on the application.
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