Affidavit by John Eldred submitted to the
Lorain County Common Pleas Court

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COURT OF COMMON PLEAS, LORAIN COUNTY, OHIO

Case No. 98-CV-121044, JUDGE THOMAS W. JANAS

LINDA EADELIS, et al., Appellants,

vs.

AVON BOARD OF ZONING AND BUILDING APPEALS, et al., Appellees.

COUNTY OF LORAIN, STATE OF OHIO, SS:

AFFADAVIT

Now comes John B. Eldred, affiant herein, and having been duly cautioned and sworn, states the following:

1. I served as a member of the Avon Planning Commission for 29 years. In 1990, I was Chairman of Planning Commission and the principal drafter of the Ordinance No. 53-90 (the "Ordinance"). I was assisted by the other members of Planning Commission, and in particular, Paul Burik, by members of Council, the Service Director, Building Inspector, and the Law Director, Russell T. McLaughlin. The preamble of the Ordinance is a vivid reminder of the many joint work sessions Planning Commission held with the Mayor and her Staff, Council, and the Board of Zoning Appeals.

2. The Ordinance is very comprehensive and revises many provisions of the Subdivision Regulations and the Zoning Code. The provisions of the various Commercial Districts were outdated and inconsistent; C-1 permitted residential use and contained no design standards; C-2 contained a prohibition of 5 or more retail establishments without regard to size and contained no design standards, except for a reference to a permanent landscape buffer where abutting a residential district; C-3 belabored classifications of shopping centers without dealing well with design standards; and C-4 had outdated design standards.

3. Planning Commission and Council were also concerned about any C-2 Commercial District property which may by its size, or if combined with other C-2 property, blossom into a shopping center without the design standards (meaning in the broad sense, area, density, landscaping, building sizes and shapes, buffers, parking, illumination, waste storage, impact studies and development plan procedures) necessary and appropriate for a shopping center. It was clear in our collective minds that if this would ever occur, and we were reasonably certain that someday it would occur with regard to the property being considered today, that when such C-2 property would be developed it would carry all the restrictions of C-3 even if it were only one retail establishment such as a "SuperStore". Before the Ordinance was passed, design standards in a C-2 Commercial District, except for some buffering, did not exist.

4. Section 1274.04 of the Codified Ordinances, which deals with this matter in its second sentence, states "Whenever the development area exceeds ten (10) acres in a Commercial District, the requirements of Chapter 1276 (or Chapter 1278 if applicable) shall apply." When drafting this provision it was the intent that if 10 acres was exceeded, the developer would simply stop at this sentence and go to, and be guided by, the design standards of Chapter 1276 (or Chapter 1278 if applicable). If we had meant merely the restriction of section 1276.05, we would have stated that, but we clearly referenced Chapters 1276/1278 in their entirety. It was never intended that the requirements of the remainder of Chapter 1274 would apply in addition to the stated requirements of Chapters 1276 or 1278.

5. At the same time, to even conceive the idea that this or any similar property would be developed in 10 acre units or patches of 20,000 square foot buildings would defy good city planning of its commercial land.

6. Further, it was never the intention to rezone any property from C-2 to C-3 by the mere fact that one desired to develop more than 10 acres. The permitted uses of C-2 and C-3 are essentially the same. The difference between the two zoning districts are the design standards. Again, with the advent of the SuperStore, we realized a SuperStore could be crammed into many C-2 properties. The only C-2 design standard was an undefined landscape "buffer" where it abutted a residential district (see section 5.24 of Ordinance No. 413-68). We realized that any property adjacent to such a development was in jeopardy, and to protect these property-owners, Ordinance No. 53-90 was created.

7. In a more current action by the City, Council and Planning Commission considered the impact that a development of a "SuperStore" might have on the City. Neither Council nor Planning Commission appeared eager to have a "SuperStore" in Avon and at least one council member wanted to prohibit any "SuperStore".

8. As a member of both the Council and Planning Commission, I prepared the initial draft to what became Ordinance No. 52-95 and later restated it in Ordinance No. 221-96. These restrictions became section 1276.06 which related to the design standards of C-3 Commercial District. The unique design standards applicable to a "SuperStore" are that it must have at least 300-foot continuous frontage on an arterial street, all entrances must be on an arterial street and at least one entrance must be within one-half mile of an interstate highway ramp. It was also apparent to all that only the property being considered today was viable because of its size and highway visibility.

9. The major portion of the property considered at this time and which is owned by Smith Associates was zoned for shopping center use in 1962 in a zoning classification then identified as "CP-1" until 1968. The parcel has been generally regarded by the City of Avon to be awaiting proper timing to be developed as a shopping center.

10. Council, with Planning Commissions recommendation, placed the "SuperStore" design standards in Chapter 1276 (C-3 Commercial District), knowing that the design standards relating to this C-2 property, when developed, would likely be dealt with under C-3 by virtue of section 1274.04.

11. I am of the firm belief that the interest of all abutting property-owners, including each of the Appellants, are better protected today with the enactment of Ordinance Nos. 53-90, 52-95 and 221-96.

12. Affiant states that the information contained herein is complete and accurate to the best of my knowledge or belief under penalty of law.

FURTHER AFFIANT SAYETH NAUGHT UNDER PENALTY OF LAW.

JOHN B. ELDRED

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