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,
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
1950s, 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.
Respectfully submitted,
Jon Lynch, AICP,