NOVEMBER 24, 2009, 7:00 P.M.,



1.   Roll Call

PRESENT:  Brown, Eyre, Hanna, Mead, Pnacek, Senesac and Stewart

ABSENT:   King


OTHERS PRESENT: Cindy Winland, Contract Planner; Cheri King, Community Development Specialist and 12 others.


2.   Approval of Minutes

Moved by Hanna, seconded by Eyre, to approve the minutes of the regular meeting of November 10, 2009 as written. Motion passed unanimously.


3.   Public Hearing


      a.   Zoning Petition No. 563, initiated by Earl D. Bennett Construction, Inc. for property located at 204 Commerce Drive from Larkin Township zoning to Residential B (a conditional zoning request).


            Mr. Pnacek disclosed that his family owns the property to the south and east of the petitioner’s property.  He requested to be allowed to abstain from voting on this petition.  Ms. Brown asked if Mr. Pnacek had any financial interest in this petition.  Mr. Pnacek stated he did not.  The Planning Commission voted against allowing him to abstain.


            Ms. Winland showed an aerial photograph of the subject property.  It is bounded by Commerce Drive and Jefferson Avenue.  The existing land use shows that it is sparse residential and agricultural around this property.  This property was recently annexed into the city.  There are commercial uses to the southwest and public/semi-public uses to the south.  The zoning map shows RA-2 Residential on the nearest property to the south and Limited Manufacturing, Research and Commercial (LCMR) to the west.  The Future Land Use map shows the subject property in the medium density residential category.  There is some commercial in the mall area, some higher density residential to the south, and some public/semi-public to the southeast. 


            The official address of this parcel is 204 Commerce Drive.  This property currently has no city zoning.  It was zoned single family residential in Larkin Township.  The proposed zoning is Residential B which includes multi family.  Two conditions to the rezoning petition have been offered by the applicant:

(1)   Limit density to nine units per acre.

(2)   Limit the height to two stories.


            Information about Conditional Zoning is found in Section 30.02(d) of the Zoning Ordinance. The petitioner can add restrictions as the petition proceeds through the review process. These conditions must be more restrictive and not less restrictive.  If the petitioner withdraws any conditions or modifies conditions to make them less restrictive prior to City Council approval, there must be another public hearing held to consider the amended conditions.


            The Ten Question Test includes:

(1)        Is the proposed amendment consistent with the city’s Master Plan? 

Yes it is.  It is shown as medium density residential.  The Zoning Ordinance allows a maximum of nine dwelling units per acre, and no more than two stories in height.  The intent of the zoning ordinance would be met with the RB zoning classification.

(2)        Will the proposed amendment be in accordance with the intent and purpose of the Zoning Ordinance? 

Yes, in staff’s opinion, the proposed amendment will be consistent with the intent of the zoning ordinance.

(3)        Have conditions changed since the Zoning Ordinance was adopted that justifies the amendment? 

No, conditions have not changed.

(4)        Will the amendment grant special privileges? 


(5)        Will the amendment result in unlawful exclusionary zoning?


(6)        Will the amendment set an inappropriate precedent? 

Given the conditions offered in this request, staff feels it would not set an inappropriate precedent.

(7)        Is the zoning consistent with the zoning classification of surrounding land? 

The zoning classification around this land does not have city zoning applied to it as that land is still in Larkin Township.

(8)        Is the proposed zoning consistent with the future land use designation?

Yes, with the conditions offered.

(9)        Could all requirements in the proposed zoning classification be complied with on the subject parcel?


(10)      Is the proposed zoning consistent with the trends in land development in the general vicinity of the property in question?



            Staff recommends approval of the petition with the conditions set forth by the petitioner.


            Five letters have been received in opposition to this zoning petition.  No letters have been received in support of this petition.


            Sheila Messler, Bennett Development, spoke on behalf of the petitioner.  The intent of the purchase of this land was for future development.  However, the site itself had certain restrictions.  It was felt that this land would only be developable if it was in the city and had city water and sewer available to it.  When the road went in, it was part of Bennett’s request to have that sewer line go down that road to service this area and have water service to this area.  In accordance with this, it was always the intent that this area would be medium density residential.  It is not suited for single family development.  Commerce Drive is not a quiet subdivision feel.  Medium density zoning would complement the property to the south of it.  There are commercial, office service, and medium density residential along Jefferson Avenue.  Their medium density residential fits this property.  It is a buffer between the commercial property to the south and the low density residential to the north.  The intent of the petitioner was always to have medium density residential there.  They would be looking at a variety of duplexes and multiplexes in there. 


            Mr. Senesac asked why the petitioner needed action on this item tonight.  Ms. Messler stated they have a purchase agreement on the front half (Jefferson side) of the parcel and they would like to move forward with this request.  For tax purposes, they would like to be able to sell this property this year. 


            John Bartos, 2095 N. Jefferson, stated his south property line is to the north of this property.  He had discussions with the owner of the subject property.  He and his wife have written a letter in opposition to this rezoning.  Their opposition has to do with the fact that medium density residential will change the character of the neighborhood.  Township zoning only allows one family per unit.  At the revised density of 9 units per acre, this property could house over 1,000 people in this area.  In the city of Midland, there are over 400 vacant single family platted lots as of today.  The original petition requested up to 28 units per acre.  It was later amended to nine units per acre when they saw the opposition to this request.  Why do they want to push through action tonight?  Is it so no one else could protest this petition?  The zoning both to the north and south of this parcel is low density residential.  The City of Midland’s Future Land Use plan shows this area as low-density residential.  What he would propose for this site would be RA-3 or RA-4, not RB zoning.  RA-4 zoning is what is on the Villages at Joseph’s Run.  It was constructed as a Planned Unit Development.  This will preserve some of the residential characteristics of the existing neighborhoods.  He hopes the Planning Commission will recommend denial of this request.


            Doug Stevens, 2102 N. Jefferson Road, is also in opposition to the project.  The majority of the parcels are RA-1, which only requires one acre per unit.  However, there are parcels with five acres per unit in this area.  The proposed zoning would take it down to nine units per acre which could accommodate an additional 1,000 people which would be significantly more intense than the existing surrounding properties.  Mr. Stevens stated this is kind of a “bubble” out in Larkin Township.  Who knows when the surrounding property will be annexed into the city.  He would like to see RA-4 as a minimum assigned to this property.  It would allow some more buffering and more control through development planning.  It allows the Planning Commission a little more control over what eventually goes in there.  Uses allowed would be foster homes, private, nonprofit social service agencies, etc.  Even though it is not now the intent of the petitioner, there is nothing to say that those uses could not go into this area.  Mr. Stevens urged the Planning Commission not to make a final decision tonight and that they spend some more time thinking about this petition.


            Jim Pnacek, 2025 N. Jefferson Avenue, stated that he and his wife live just north of this area.  Traffic on Commerce Drive is very congested and has high traffic volumes.  It carries traffic from the soccer fields and from the mall.  He and his wife would like this property to remain Residential A.  As none of the property surrounding this parcel has city zoning, they would like to see it remain with the lower intensity zoning.  The traffic is already horrendous and this new development would just add additional traffic to this area. 


            Mike Pnacek, 2661 Blackhurst Road, Larkin Township, stated he is speaking for his brother, Pat Pnacek.  He owns the property from the corner of Letts Road to the north on the east side of Jefferson.  The master land use plan calls for that to be low density residential.  He is not opposed to it being zoned RA-1, RA-2, RA-3 or RA-4.  However, he is definitely against RB.  Speaking for the rest of his family, he also did not want the curve in Commerce Drive.  He does not see any development in this area for the next 10 to 20 years.  The only thing they are using the land for now is for 75 acres of corn. 


            Sheila Messler, from Bennett Construction, stated that RA-4 has been brought up quite a bit tonight.  When she spoke with Mr. Baker, RA-4 did not fit with their intended use of this property.  Mr. Baker told her that medium density zoning allowed up to nine units per acre.  That is what they are looking for.  The intent of this development was ever only for nine units per acre and a maximum of two stories.  If Joseph’s Run is developed as RA-4, this is certainly more intense than their intent for this property.  Ms. Messler asked Ms. Winland to review the requirements of RA-4.


            Ms. Winland stated the uses permitted by right in each of the four districts are similar.  They have typical allowances for accessory structures and uses.  There is a list of conditional land uses specified, including bed and breakfasts, child care facilities, golf courses, public and private non-profit agencies, houses of worship, etc.  The development standards include two-family homes on RA-4.  Setbacks and lot sizes are different in each of the Residential zoning districts. 


            Sheila Messler stated the property was originally Pnacek property.  They sold it to a development company.  The property has corn on it now, until they decide what to do with it.  Commerce Drive is a feeder road to get people off Eastman Avenue.  There is no doubt that somewhere down the road, the land to the north and south will be developed.  Where is the buffer to the north if the south is developed as commercial?  A study was done called “Northside Mixed-Use Neighborhood”.  This study was done with both foundation monies and private funding.  One of the things this study looked at was this area and the surrounding land.  When Commerce Drive was going in, it was thought that single family residential would not work in this area.  The Planning Commission has always gone with a buffer between commercial and lower density residential.  It is not marketable to put 1,000 people into this area.  Anyone who is looking to buy the property is looking at what is marketable in this area.  This has been ongoing for a long time.  This area will not develop as single-family RA-1 residential.  They do not feel it will work due to the road.  There are 37.5 acres there total.  What is currently being looked at for purchase is about half of that.  There is an option on the Jefferson side half of the parcel. 


            Mrs. Hanna asked that, if this property were to be developed, would the access be off Jefferson or off Commerce Drive?  Ms. Messler stated she would hope there would be an access off both streets.  However, that would come before the Planning Commission as a part of a site plan review.  Mrs. Hanna asked if they would be accepting of an RA-4 zoning district.  Ms. Messler stated that would limit them to duplexes.  They would like to be able to do four-plexes with two-car garages.  There could be a blend of duplexes and three-plexes in this area.  They do not want it to look like an apartment building. 


            Mark Wahl, one of the proposed purchasers, stated there are several people here who have concerns about this project.  He is a builder, by trade.  They thought this was in the master plan and that they were following the master plan.  They want to be good neighbors.  It needs to be zoned to fit the proper use.  They may buy it or they may not.  With a street name like “Commerce Drive”, do you really think this will be developed single-family residential?  You see the back of Home Depot, First American Title, the golf place, and other commercial development if you drive in this area.  He certainly does not see 1,000 people pulling out onto Jefferson.  They are planning to purchase half of this parcel now with an option on the remaining portion.  Their intent was for the first half to be developed as condos, with two-plexes and four-plexes.  They are not trying to put anything over on the city.


            John Bartos stated this is very fitting if you do not live there.  The work done by the Entranceway Committee was to start at Joe Mann Drive, ¾ of a mile to the south. 


            Mike Pnacek stated when Jefferson was extended out to Letts Road, the question was asked of Jon Lynch, as Planning Director, if they would allow 13 curb cuts off Jefferson.  Mr. Lynch stated that there would not be, if it was within his power.  Mr. Pnacek stated there would be only two curb cuts allowed off Jefferson Avenue and two off of Commerce Drive.


            No one else spoke either in favor of or in opposition to this zoning petition.  The public hearing was closed.


            Motion by Mead to continue the standard process by voting on this matter at the next meeting.  Seconded by Hanna.  Mr. Senesac stated they do not need a motion to wait two weeks to make their vote.  Ms. Brown would also prefer to stick with the regular process of waiting until their next meeting.  Motion passed 7-0.


4.      Public Comments (unrelated to items on the agenda)



5.      Old Business

         a.  Zoning Text Amendment No. 149A, initiated by the City of Midland, to amend Section

         3.03 of the Zoning Ordinance to further define permitting and foundation requirements for accessory structures in the City of Midland.


         Ms. Winland stated the City of Midland Building Department has identified a deficiency in the Zoning Ordinance where neither a zoning compliance permit nor a “rat wall” is required for an accessory building less than 200 square feet in area.  The criteria were shown and the Planning Commission was familiar with those criteria.  The proposed language was reviewed including language about the use of a rat wall as well as an explanation of foundations.  Ms. Winland stated this language was taken before the Homebuilder’s Association and there were no objections.  A definition of a rat wall with graphics will also be added to the zoning ordinance if this amendment is approved.


         Motion by Eyre, seconded by Hanna, to approve Zoning Text Amendment No. 149A to amend Section 3.03 of the Zoning Ordinance to further define permitting and foundation requirements for accessory structures in the City of Midland. 



        YEAS:            Brown, Eyre, Hanna, Mead, Pnacek, Senesac and Stewart

        NAYS:           None

        ABSENT:       King

        VACANCY:   One

            Motion passes 7-0.


6.        New Business



7.        Communications



8.        Report of the Chairperson  

           Ms. Brown noted the Citizen Planner seminar offered in December regarding wind, solar and outdoor wood burners.  Planning Commissioners requested to receive a copy of the brochure individually.


9.        Report of the Planning Director



10.      Commissioner Comments



11.      Adjourn          

           Adjournment at 8:23 p.m. was unanimously approved.

Respectfully submitted,




Keith Baker, AICP

Director of Planning & Community Development