MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, JULY 20, 2004,

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

MIDLAND, MICHIGAN

 

1.   ROLL CALL.

PRESENT:  Board Members – Dunn, Higgins, Holthof, Lichtenwald, and Sutton

ABSENT:    None

OTHERS PRESENT:   Jon Lynch, Assistant City Manager; Cheri Standfest, Community Development Specialist; Roy Green, Alternate Zoning Board of Appeals Member and nine people in the audience

 

2.     ELECTIONS.

It was moved by Higgins and supported by Sutton to nominate Hank Holthof for

     Chair.  The motion was unanimously approved.

 

     It was moved by Sutton and supported by Higgins to nominate Tim Lichtenwald

     for Vice Chair.  The motion was unanimously approved.

3.   APPROVAL OF MINUTES.

It was moved by Higgins and supported by Sutton to approve the minutes of the May 18, 2004 meeting.  The motion was unanimously approved with the following corrections:  page 1 in the last line “nonforming” should be “nonconforming” and on page 2 in the sixth paragraph, the last line “not” should be “nor”.

 

4.   PUBLIC HEARINGS AND CONSIDERATION.

 

Petition No. 04-08 – David and Alice Jensen for an area/dimension variance to permit a garage addition in a required side yard setback at 4613 Bristol Court.

An application has been made by David and Alice Jensen, 4613 Bristol Court, to permit the construction of a 9-foot wide addition to an existing garage that is 24-feet long.  The additional 9 feet will bring the total garage width to 24-feet.  The property is located in a Residential A-1 zoning district.  Article XXIV, Section 24.1 of the Midland Zoning Ordinance requires a minimum of an 8-foot side yard in an RA-1 zone.  The 9-foot addition will encroach into a required 8-foot side yard setback by approximately 2 feet.  This encroachment will result in approximately 8 square feet of the building addition being within the required setback.

David Jensen stated that the house was on the market for six months and did not sell.  He thinks it was because it had only a one-car garage.   There is an existing oak tree at the front of the carport.  The site slopes away toward the creek.  He would have to destroy the current garage and carport to access the site to bring in fill.

Jack Higgins wanted to know why he needed a 24’ garage.  He could have a 22’ garage and still meet the setback requirements.

David Jensen stated he thought 24’ was more typical.  There is a creek about 30’ away from the house.  The creek is on the same side as the garage.  The owners purchased the house in October, 2003.  The house is 4-feet lower than the garage.  Building in back of the house would require 4’ of fill.

Jack Higgins disclosed he is president of a condominium association that shares a lake in the area of this property, however, it will have no effect on his decision.

 

Findings of Fact:

1.  Zoned Residential A-1.

2.  The house was built in 1956 with a single car garage.

3.  The house was purchased October 2003 by the petitioner.

4.  A carport exists in front of the 1-car garage.

5.  The property abuts a recreational buffer.

6.  The property is five sided on the bulb end of Bristol Court.

7.  Large portion of lot in rear contains flood plain and Snake Creek.

8.  According to petitioner the house is positioned such that the garage is at least

     30’ behind the neighbors to the west.

9.  Encroachment will be 2’ into the southwest corner of the side yard setback

     with a total encroachment of 8 square feet.

10. Received two letters in support.

11. New concrete drive will not encroach into the required side yard setback.

12. Slope of west rear yard would require substantial fill in order to build

      the garage in the back, according to two builders contacted by the petitioner.

13. The frontage along the court is approximately 44 feet.

 

A motion was made by Sutton and seconded by Higgins to approve petition No. 04-08 for an area/dimension variance that will encroach into the required side yard setback approximately 2 feet, for a total of 8 square feet into the southwest corner.

 

Joe Dunn stated the property is unique due to the shape of the lot and narrow frontage.  Strict compliance would create a problem for the owner. The lay of the land would make it costly to reposition the garage.  It would do substantial justice to the applicant and the neighborhood, as many houses in the neighborhood have 2-car garages already.  It is not self created due to the uniqueness of the property, with flood plain and the slope of the property.

 

Hank Holthof feels the first criteria is met.  It would be unecessarily burdensome to demolish and fill, given the small amount of the variance.  Angular alignment would do substantial justice and will be aesthetically acceptable.  The house is not set square due to the unique shape of the lot.  It is not self created due to the location of the creek and the flood plain.

 

Sally Sutton feels all the criteria can be met due to the unique aspects of the lot and the small encroachment required to complete the project. 

 

Tim Lichtenwald feels all the criteria have been met.

 

Jack Higgins feels that in the 1950’s, when the house was built, one car garages were the norm.  Today, two-car garages are the norm.  He is having trouble with the issue of unnecessarily burdensome.  He thinks other opportunities exist.

 

Vote on the motion:

 

Yea:  Dunn, Holthof, Lichtenwald and Sutton

Nay:  Higgins

 

The variance was approved.

 

Petition No. 04-09 George and Norma Siebert for a use variance to rebuild their structure if destroyed by any means at 6511 Jefferson Avenue.

 

If approved, this request will result in the continuation of a nonconforming use of land, that being a residential dwelling in a commercial zoning district, in the event the structure is destroyed.  Section 32.1(b) of the City of Midland Zoning Ordinance indicates that if a nonconforming structure is destroyed it will not be restored except in conformity with the ordinance.  Section 32.3(a) of the Zoning Ordinance requires that an existing structure devoted to a nonconforming use  not be reconstructed except in changing the use to one permitted in the district.  In this case the property owners are seeking a residential mortgage and are unable to secure financing given the nonconforming status of the property.

 

By virtue of Sections 18.1(a)1 and 16.1(a)1, dwelling units in the Business C Zone are permitted only when located on upper floors above business establishments.  If the subject dwelling were destroyed beyond 70% of its value by fire or some other disaster, the occupants of 50 years would be required to convert the use of this property to a commercial activity.  At best, a dwelling unit could be placed above the commercial use.

 

Section 32.3(d) of the Zoning Ordinance recognizes that residential nonconformities are less important to eliminate than non-residential nonconformities, in that the provision allows dwellings in a non-permitted district to be expanded for residential purposes by up to 50% of the ground floor area.  In addition, the Zoning Board of Appeals is directly involved in matters associated with nonconformities by Section 32.2(f) which allows an aggrieved party to appeal determinations of value to the ZBA and Section 32.3(c) which allows the ZBA to approve replacement of one nonconforming use with another.

The property was annexed in June, 2000.  At the time of annexation it was zoned in Larkin Township as RB – residential.  After annexation, the city applied a zoning of Business C.

 

No public comments were received.

 

Eric Thorn (loan officer), a respresentative of the Sieberts, spoke.  The owners have been trying to sell the house for four years, off and on.  The property cannot be put to residential use in a commercial zone.  No one can get a mortgage for the house in the current condition.

 

The house was built in 1955.

 

Findings of Fact:

 

1.  Property is in a Business C zone.

2.  Has been used as a residence for the past 50 years.

3.  There are no commercial uses of the property in the immediate area with the        exception of the cell towers.

4.  Property was zoned Business C, in accordance with the Master Plan, after it         was annexed in February 2001.

5.  Property was zoned Residential B in Larkin Township.

6.  Annexed in June 2000.

7.  Lot is located on the corner of Jefferson Avenue and Airport Road.

8.  Subject parcel is approximately 100’ x 200’.

9.  Airport Road is parallel to the US-10 highway.

10. Mortgage refinancing has been denied due to non-conforming status.

11. Petitioner has been unable to sell home for approximately four years.

12. Staff reported, at the time of rezoning, petitioner requested Office Service

      zoning instead of Business C.

 

A motion was made by Higgins and seconded by Sutton to approve Petition No. 04-09, a use variance, in accord with Finding of Facts, on condition that the structure be rebuilt within one year of signficiant loss, for residential use, and that it meets the setbacks of Residential A-2 zoning.  This action of the ZBA will be recorded with the Register of Deeds.

 

Jack Higgins stated all four criteria are met.  The fact that it has been for sale four years and did not sell shows that it cannot be put to a permitted use as Business C.  This area is unique as a residential neighborhood in Business C.  It was made non-conforming due to action by the City of Midland.

 

Holthof agrees with Jack.

 

Sutton agrees with Jack.

 

Lichtenwald agrees also.

 

Dunn had nothing to add.

 

Vote on the motion:

 

Yea:  Dunn, Higgins, Holthof, Lichtenwald and Sutton

Nay:  None

 

The variance was approved.

 

Petition No. 04-10  Elson Boles for an area/dimension variance to permit the construction of a two car garage at 321 West Nelson Street. 

 

If approved, this request will result in conversion of an existing attached garage to living space and will result in construction of a new two-car garage that is approximately 22’ x 24’.  This new attached garage would be within 7 feet of the side property line.  Section 24.1(a) of the City of Midland Zoning Ordinance requires minimum side yards of 8’ and 12’ in an RA-1 zone.  The proposed addition will encroach into a required 8’ side yard setback by approximately 1’.  This encroachment will result in approximately 24 square feet of the building addition being within the required setback.

 

Elson Boles stated the original property line location was wrong.  Originally they thought the existing setback was 9.5’ at the existing corner.  Jerry Davis, from the City, went out and located irons in the ground.  Upon locating the irons, they found the existing setback is 10’ to 10.5’.  The south corner is 8’ from the property line.  With two children, they need more space to accommodate their family.  There is no access to the rear yard from the interior of the house.  There is currently a 32’ front yard setback.  The plan is consistent with the neighborhood aesthetics.  They are only building on a narrow 2-car garage. 

 

Mr. Boles showed photos of seven houses in the neighborhood who had similar designs to that which he proposed.  The fence on site is 1’ off the property line and belongs to the next door neighbor.  The petioner will be going from approximately 1,000 square feet to approximately 1,700 square feet.  He addressed the criteria:

 

1.  The current house cannot accommodate the needed living space.

2.  Would improve property values of the house and the area.  The addition would      be masonry, to keep in tune with the house.

3.  Pie shaped lot.

4.  They are currently out of conformity, with the existing house.

 

Petitioner has lived in this house about three years.

 

Dave Ponte, 317 West Nelson, stated that his concern is that the drawing creates a garage as a predominant feature of the home.  He feels his house will be negatively perceived as a result.  He has an egress window on that side of the house, as well as his air conditioning unit.  He is not against the addition at the side, but is concerned with the forward motion.  He objects purely on an aesthetic basis.

 

Hank Holthof stated he could build a garage to the front yard setback.  This will not establish a pattern in the area.

 

Mr. Ponte said he would hate to see a 1-car garage addition.  His concern is the view from his front porch.

 

Mary Ponte, 317 West Nelson, stated she thought Mr. Boles needed to come over further.  She stated she does not care about the side yard setback, so long as it is within code.

 

Findings of Fact:

 

1.  Lot is 85’ wide in back, 65’ wide in front and 135’ deep and is less than the            12,000 square feet required for a Residential A-1 lot today.

2.  The front is currently 15’ narrower than required in RA-1 zoning.

3.  On the revised plan, the proposed addition appears to meet the 8’ setback             requirement.

4.  North side of the existing structure appears to be 10’ 6” off the property line.

5.  Current home does not allow access to the rear yard without going through

     the garage.

6.  Petitioner showed photos of seven homes in the area similar in style to that he      is proposing.

7.  Current home is approximately 1,000 square feet.

8.  Proposed addition appears to add approximately 700 sq. ft. of living space.

9.  Zoned Residential A-1.

10. Built in 1954.

11. Purchased house three years ago.

12. Located on slight curve of Nelson.

13. Proposed garage addition will be 32’ from front lot line.

14. One letter in support, one letter in objection, one call of objection from

      attending neighbor who spoke of concern for proposal.

15. Majority of lots in the area do not meet Residential A-1 size.

16. New garage would be a narrow 2-car garage of 18.32’ width.

 

A motion was made by Higgins and seconded by Sutton to approve a varance of 2’ total in the total side yard setback based on Findings of Fact.

     

Jack Higgins stated that it is burdonsome as he is in a Residential A-1 zone but his lot does not meet the minimum RA-1 size.  It would do substantial justice.  Mr. Higgins stated he is not a fan of a garage in front, but it is a common design.  The plight of the owner is created by the under-sized lot and the unusual shape of the lot.  It is not self-created as lot sizes are now required to be larger.

 

Hank Holthof agrees with Jack.  It is not self created as the lot is only 65’ wide in the front.  The garage is coming forward but it is behind the required front yard setback.

 

Tim Lichtenwald agrees with Hank and Jack.  He feels the criteria have been met.

 

Joe Dunn stated that the size and shape of the lot create special problems.  All criteria are met.

 

Sally Sutton can support primarily due to the uniqueness of this property.

 

Vote on the motion:

 

Yea:  Dun, Higgins, Holthof, Lichtenwald and Sutton

Nay:  None

 

The variance was approved.

 

  5.  Public comments before the Zoning Board of Appeals.

   None 

  6.  Old/New Business.

An e-mail from the City Attorney was presented, regarding a court finding that a Zoning Board used proper discretion. 

The Michigan State Planning Conference will take place the last week of September.

 

7.  ADJOURN.                                  

        The meeting adjourned at 9:25 p.m.

Respectfully submitted,

 

 

Jon Lynch, AICP,

Assistant City Manager