6-19-12 Zoning Board of Appeals Meeting Minutes

MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

TUESDAY, JUNE 19, 2012

6:30 P.M., IN COUNCIL CHAMBERS, CITY HALL,

MIDLAND, MICHIGAN

1. ROLL CALL

PRESENT: Board Members - Green, Higgins, Lichtenwald, and Steele

ABSENT: Board Members – Siemer and Pnacek

OTHERS PRESENT: Cindy Winland, Consulting Planner, Cheri King, Community Development Specialist and 6 others.

2. APPROVAL OF MINUTES

It was moved by Higgins and supported by Green to approve the minutes of the April 17, 2012 meeting. Motion was unanimously approved as presented.

3. PUBLIC HEARINGS

The Chairman explained the public hearing procedures and how the Board decides if the variance request is approved based on the five Zoning Board of Appeals criteria in the Zoning Ordinance. Mr. Steele reinforced that the variance is legally recorded with the property and is not transferrable and does not change, despite the ownership of the property. Mr. Steele offered the petitioners the opportunity to move forward tonight with a Board of four members or wait until next month when we will most likely have a full Board of five members. Approval of the petition will still require three votes of the Board.

a. No. 12-04 – Garber Corporation for a variance to the front yard setback for a principle structure. The applicant is asking for a variance of 7’6” setback to the required 25’ setback. The property is zoned Regional Commercial and is located at 1700 N. Saginaw Road.

Background:

Michael Weinert, General Manager for Garber Chevrolet stated he would like to move forward with his petition this evening with four Board members present. Cindy Winland stated they are asking for a 7’6” variance to the required 25’ setback. The property is zoned Regional Commercial and is located at 1700 N. Saginaw Road. Garber brought a picture of a rendering of the building once the façade is constructed.

Criteria for granting a variance:

(1) Will strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other non-use matters unreasonably prevent the owner from using the property for a permitted purpose or render conformity unnecessarily burdensome?

Petitioner: The franchise is controlled by General Motors and is required to comply with certain standards in order to keep the franchise. They are periodically required to update their facility in order to keep the GM branding standards.

Staff: Ms. Winland stated that no, the variance is not required to continue to use the property as a car dealership or any of the other uses permitted in Regional Commercial zoning.

(2) The variance will do substantial justice to the applicant as well as to other property owners.

Petitioner: There is a large green belt along Saginaw Road. It will not affect any residential properties. It is mostly city property along the road.

Staff: The proposal does not affect any of the clear vision areas. The clear vision area is 30 feet back from any of the intersections. It will also not affect any neighboring properties as everything around them is commercial. In fact, you cannot see any residential properties from this location.

(3) The variance requested is the minimum variance to provide substantial relief to the applicant and/or be consistent with justice to other property owners.

Petitioner: The required element would encroach 7’6” into the required setback. There are also a number of businesses in the area who also do not meet the setbacks.

Staff: There are other alternatives available to the petitioner such as installing the elemnt on the new part of the showroom. The property can still be used for a permitted purpose without this addition.

The right-of-way on Saginaw Road is very large. Questions have been raised in the petitioners application as well as from ZBA members regarding the setback of other businesses in the area. Staff was unable to locate site plan review documentation for the nearby businesses, but City Engineering’s ROW maps show that Taco Bell is approximately 17 feet from the property line. JoAnn Fabric, on the east side of the mall, has approximately a 28 foot setback.

(4) The need for the variance is due to the unique characteristics of the property not generally applicable in the area or to other properties in the same zoning district.

Petitioner: The design requirements that GM is asking them to adhere to are similar to other dealerships throughout the nation. GM’s requirements would make things better for their Midland customers.

Staff: As far as the property itself, there are no unique features. It is on a corner lot. Many local businesses were built quite some time ago and did not have a front yard setback or were built within the front yard setback. If these buildings wanted to add on, they would have to apply for a variance too.

(5) The problem and resulting need for the variance has been created by strict compliance with the Zoning Ordinance and not the applicant.

Petitioner: The setbacks have been in place for many years and no one anticipated the change to the building when the building was built. The requirements are a requirement of GM. Without the variance, they will no longer be able to operate as a GM dealership.

Staff: The applicant has stated that the improvement is required by GM. If it is the case that without this variance he will not be able to meet GM’s requirements and will lose the ability to operate a GM franchise, indicating that this problem was not created by the applicant.

Dave Boersma, from Spicer Group, is the architect for Garber Chevrolet. He is from Clarkston. Mr. Boersma stated it is 20’11” to the front of the building. It is an overhang so they do meet the ordinance requirements today. An overhang is permitted to extend 36” into the right-of-way. There is a masonry area in between the showroom and the body shop that was built in a remodel during the 1980’s. The existing overhang extends into the setback area by 4’1”.

This new façade is something that has been mandated by GM’s architect. It will not act as an entrance. What he has dealt with so far, every request to deviate from their design has been denied.

The existing façade sticks out 4’1”. Then the new façade would stick out in front of that. Mr. Higgins asked why they cannot take off the existing fascia and then place the new façade in that area. Mr. Boersma stated that fascia is covering an ugly steel building.

Mike Weinert, General Manager, discussed the five criteria. Question A, this is a branding element, much like McDonald’s has their golden arches. When someone sees a blue arch, GM wants people to think this is a GM dealer. The arch is a pre-fabricated design and it is the same for every building. Mr. Green asked if they know of any dealerships who have not had to comply with the requirements. They know of none. They also do not know of any dealerships who have lost their GM franchise because of this.

Question C – Yes, this is the minimum variance required to remain a franchisee with GM. They would have to re-do the entire roof and entire front of the building if the variance is not granted. The only unique circumstance is that it is required by the franchise agreement with GM.

Question D – When the original building was built, there is no way they could have anticipated that GM would require this modification today. This is all since GM’s bankruptcy a couple years ago.

No one else spoke either in favor of or in opposition to this request.

Findings of Fact:

1. The property is zoned Regional Commercial.

2. It appears that Taco Bell was built prior to the current ordinance. It also appears that Pizza Hut was also built prior to the current ordinance.

3. There are no unique features to the property.

4. General Motors requires that this particular facade be installed.

5. The current overhang is 4’ 1”. Therefore is 1’1” into the setback as an overhang.

6. The façade was prebuilt by others. Substantial changes would be required to install the façade elsewhere.

7. No letters or comments have been received.

8. The location is at one of the heaviest intersections in the city so far as traffic is concerned – at the corner of Saginaw and Eastman Roads.

9. The branding element is required of all GM dealers in North America.

10. It is a requirement in the franchise agreement that they comply with the branding logo.

11. The existing overhang offers sun shading for the showroom (energy savings).

12. The new façade is not an entryway. It is more cosmetic.

It was moved by Higgins and supported by Lichtenwald to approve Petition No. 12-04 based on the findings of fact for an area/dimension variance at 1700 North Saginaw Road for a variance of 7’6” setback to the required 25’ setback for the proposed element only.

Mr. Higgins stated it is unnecessarily burdensome because GM is requiring them to put the façade on. He can also get by “B” and “C” of the criteria. He cannot get by criteria “D”.

Mr. Green stated we have had other franchisees that have come and said they will lose their franchise if they did not receive the variance. The variance was not granted, and modifications were made to accommodate the Zoning Ordinance. He has issues with supporting it. Mr. Lichtenwald stated he agrees with everything Jack said. There is nothing unique about the property.

Dave Boersma, Spicer Group, stated there are a couple of unique features regarding the parcel: The right-of-way for the old US-10 is extensive. The corner of that property has a permanent easement for MDOT. That has never been vacated.

Mr. Higgins stated he does not find these issues unique. Mr. Steele stated that he feels the MDOT easement is a large area. We have a building that has been there a long time and he thinks it will be a hardship for the dealership to change their building to meet that. About a year ago, we also had an issue with another company dealing with their signage.

Vote on the motion:

Steele: Yes

Lichtenwald: Yes

Green: No

Higgins: No

The motion to approve Petition 12-04 did not pass by a vote of 2-2.

b. No. 12-05 – Walmart Corporation for a variance to the maximum permitted square footage for a wall sign. The applicant is asking for a variance of 322 square feet to permit a wall sign of 472 square feet. The maximum wall sign permitted is 150 square feet. The property is zoned Regional Commercial and is located at 910 Joe Mann Boulevard.

Background: Ms. Winland stated the property is at the corner of Joe Mann and Elisenal. Walmart was granted 600 sq. ft. of signage, which they have maintained. Tonight they are asking for a reduction down to 472 sq. ft. The applicable regulation in the zoning ordinance is Section 8.03, item “D” under non-conforming signs, item #3, the Substitution clause.

Ms. Winland noted there is a 22% reduction in the amount of signage. The petitioner can still use the property for a permitted purpose. It is in keeping with Walmart’s standard branding nationwide. The variance requested is the minimum amount to provide substantial relief. They have chosen that as the minimum necessary for visibility. There are no unique circumstances to the property. If you compare this to other structures in the area, this building will have the least amount of signage. The justification for the 600 sq. ft. variance was due to the distance from the road and visible frontage of the building.

David Skinner, spoke as the representative for Walmart. This is part of an interior remodel. The uniqueness is that, they have the allowable square footage and they want to take it down and re-sign the building. If there were multiple tenants in that building, they could each have 150 sq. ft. of signage. They all add up to 472 sq. ft. Summarizing the criteria, Mr. Skinner stated he would be happy to answer questions. No communications have been received either for or against.

Criteria for granting a variance:

Petitioner: This property is already in use as retail/grocery, so as such, this question probably does not apply in this case.

Staff: The property is being used for retail at this time. A change in signage is not necessary to permit the continued use of the property.

(2) The variance will do substantial justice to the applicant as well as to other property owners.

Petitioner: This variance would allow Walmart to apply their new corporate logo/branding as part of the upcoming remodel. The proposed sign package will be reduced in overall square footage and total number of signs from what is currently on the building. The new logo/sign package is part of Walmart’s national branding. It is our belief that the revised “appearance” and overall reduction in sign/size are in keeping with Walmart’s effort to modernize its national brand, while at the same time conforming to, and enhancing community standards and appearance.

Staff: Substantial justice is a measure of fairness. The existing signage on stores of similar size with similar setbacks from the road, such as Meijer and the major stores in the mall, are substantially larger than 150 square feet. While some of these stores were built when the ordinance permitted signage based on frontage and setback, and others when the sign size was limited to 200 square feet, the current ordinance requirements appear to be too restrictive for large structures given the size of signs that exist now.

(3) The variance requested is the minimum variance to provide substantial relief to the applicant and/or be consistent with justice to other property owners.

Petitioner: We believe that the variance requested is the minimum needed, given that we are proposing to reduce and remove existing signage. For instance, the existing “Always” signs at the vestibules are being removed completely. The current “Food Center” and “low prices” signs at the vestibules are being replaced with smaller “Market, Home & Pharmacy” signs.

Staff: The measure of adequate visibility varies widely and is partly a subjective measure. However, the applicant is asking to reduce signage, which implies that this is the minimum square footage and number of signs that are necessary for visibility and direction.

(4) The need for the variance is due to the unique characteristics of the property not generally applicable in the area or to other properties in the same zoning district.

Petitioner: Only the property is being updated and upgraded through the proposed removel, which would seek to include the newer sign package.

Staff: There are no unique aspects of the property that require the variance. However, the issue of adequate square footage and number of signs applies to most of the structures of this size, setback and general location.

(5) The problem and resulting need for the variance has been created by strict compliance with the Zoning Ordinance and not the applicant.

Petitioner: The problem is the result of strict compliance with the current Zoning Ordinance.

Staff: As a request to reduce both the number and total square footage of signs, this is a situation where the applicant is requesting to become more conforming with the ordinance. Because of this, we would not consider this to be a problem created by the applicant, but a move toward greater conformance.

No one else spoke either in favor of or in opposition to this request.

Findings of Fact:

1. The property is zoning Regional Commercial.

2. No communications were received.

3. Current variance allows 600 square feet.

4. Building is 115’ from Joe Mann Boulevard.

5. The number of signs and their area are both factors.

6. The variance was initially granted in two stages. Two variances were received in 2003 and 2000. One variance was granted and one was turned down.

It was moved by Higgins and supported by Green to approve Petition No. 12-05 based on the findings of fact for an area/dimension variance at 910 Joe Mann Boulevard for a variance of 322 square feet to permit a wall sign of 472 square feet provided that the new variance is good for 472.33 sq. ft. and it supersedes the 600 sq. ft. variance.

Higgins noted that they are reducing the square footage and therefore making things better. He thinks we should move in that direction. If the applicant was asking for 300 square feet of variance today I would deny it. Under these circumstances I am in favor of this on the basis of improving the amount of signage.

Green requested that the minutes reflect the Board of Appeal’s concern about these sorts of issues coming to the Board. Specifically, Mr. Green was referring to proposed reductions in sign size and number that decrease the level of nonconformance of signs. These should be taken care of administratively by staff, saving both the ZBA’s time and the applicant’s time and expense. Mr. Green asked to send the Board of Appeal’s interpretation of the ordinance regarding a reduction in nonconformance to the Planning Commission.

Mr. Green stated he agrees with Mr. Higgins. He has seen stores that have been remodeled. Based on the fact that the applicants need less signage, he has no problem voting for this variance. Mr. Lichtenwald stated he is also in agreement. Mr. Steele stated he is also in favor of the variance.

Vote on the motion:

Steele: Yes

Lichtenwald: Yes

Green: Yes

Higgins: Yes

The motion to approve Petition 12-05 was approved by a vote of 4-0.

4. PUBLIC COMMENTS (not related to items on the agenda)

None

5. OLD BUSINESS

None

6. NEW BUSINESS

Mr. Higgins moved to re-elect Jon Steele as Chairman and Roy Green as Vice Chair for the coming year. Mr. Lichtenwald seconded the motion. Motion passed unanimously.

7. DECISION SHEET SIGNATURES

a. 12-03 Review Findings of Fact

8. ADJOURNMENT

Hearing no further business, the Chairman adjourned the meeting at 8:12 p.m.

Respectfully submitted,

Cynthia E. Winland, AICP

Consulting Planner