The Berlin Township Architectural Review Board had its first meeting of 2024 on Feb. 6, where a single applicant, T&R Properties, had six cases consisting of appeals and area/use variances for Berlin Industrial, LLC.
The property is at 4120 State Route 37 E., Delaware, in the Berlin Business Park/Berlin Industrial Overlay. “The applicant asserts that the Trustees improperly imposed unpromulgated conditions upon the development plan and improperly considered the application pursuant to Article 19 of the Berlin Township Zoning Resolution,” the minutes stated.
“We’ve worked on this mixed-use project for over a year,” said applicant R.J. Sabatino of T&R Properties, “69 or so acres. We have four-120,000-square foot industrial buildings… we were approved in a way that is not economically feasible and not viable, not functional… without this warehousing and storage code.”
Witnesses for the applicant said they were surprised the township hadn’t approved the code at the outset, because “you’re building a warehouse, but you can’t store things in it doesn’t make sense.” Further, “every industrial use to some degree is as warehousing and storage.”
However, a resident said, “I can’t comprehend why somebody would go out and buy something that they know they can’t feasibly do with it,” referring to the applicant.
The BZA had to determine whether this lack of code caused an unnecessary hardship for the applicant, taking into consideration criteria used in a state case called Duncan v. Middlefield, before granting an area variance.
The BZA said it felt it needed “more information … and what it would do to the complex,” and it was confused about prior action involving parking spaces and locking docks. The BZA said the warehousing wasn’t in Article 19, and that it, as a body, was unable to grant the variance.
Further, the BZA said, “The applicant has not shown unnecessary hardship because many other economic viable uses do exist for the property.”
The BZA then unanimously voted to deny the variance for the code, as well as 3-2 votes to deny both the parking space and locking dock variances.
Next, T&R had two other variances at the same address for Berlin Apartments, LLC. The representatives for the applicant said the township’s current documentation means the proposed apartments are “not viable for development.” The land is currently being farmed.
One of the witnesses, developer Skip Weiler, said Delaware County has a housing shortage. He said people opposed to high-density housing are misguided. More units, he said, means more amenities and more maintenance personnel. He also said a mixture of retail, housing, and other uses are needed to make a community go economically.
“If you have real low density, you can’t make the economics work … it’s all about debt service coverage ratios,” Weiler said. “Without the jobs, you’re not going to get the people. And without the people, you’re not going to get the rents.”
Weiler also said, “There’s a lot of people that say, we don’t want development, we want to stay rural, we want to keep the farm community. Which is really what Johnstown is saying. Johnstown isn’t going to exist. New Albany is going to annex it all up, all the land around it and then New Albany is getting density and they’re getting mixed uses.”
A resident disagreed, saying, “I’m tired of hearing about what’s in Johnstown or what’s in New Albany. Our community decided what we wanted right here. And it doesn’t matter what’s two miles east or west, we decided that’s what we wanted to do.” He went on to say the township denied his ability to own chickens, so if he has to obey the law, the applicant should, too.
Another resident said of the applicant, “They’ve been rejected at least three times that I’ve witnessed. They keep coming back with the same plan. It doesn’t fit the zoning that the community agreed on. It still doesn’t. And so, I think they just need to get rejected one more time.”
“We’re here again to try to give the Township one last opportunity before we pursue our damages under other legal options,” Sabatino said. “One more opportunity to do something that’s right, instead of condemning our right to use our land.”
The board went into deliberation, and said it required more discussion. After more than 4.5 hours, the T&R Properties hearing was continued to Feb. 20.
At that meeting, after rescinding the prior votes in light of more testimony, the BZA again voted unanimously to deny the variance for the NAICS 493 Industrial/Warehousing use of the property, saying other codes could be used instead. They also dismissed the two appeals from T&R, saying the BZA does not have the authority to hear or decide an appeal from a decision of the board of trustees.
However, the 500 parking spaces for Berlin Industrial were approved.
As for the apartments, applications for them were both unanimously denied on the basis of not showing an undue hardship and the density of housing and parking.
Berlin’s Board of Zoning Appeals consists of Chair Don Sutton, Vice Chair Jason Acevedo, Brad Cook, Michelle Cook, Larry Harmon, and alternates Jessica Kenzli and Quinn Machan.
The BZA meets at the township hall, 3271 Cheshire Road, Delaware.
For more information, visit www.berlintwp.us (website); Berlin Township (Facebook); Berlin Township, Delaware County, Ohio (YouTube).
Assistant Editor Gary Budzak photographs and reports on stories in eastern Delaware County and surrounding areas.
