MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, SEPTEMBER 21, 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, ZBA alternate; and nine people in the audience.

 

2.         APPROVAL OF MINUTES.

           

            It was moved by Higgins and supported by Lichtenwald to approve the minutes of

the July 20, 2004 meeting.  The motion was unanimously approved with the following corrections:  Page 1, item 2, under elections, seconded by Joe Dunn to nominate Hank for Chair. Page 2 – It was an attached garage, hyphenate self-created and change criteria to criterum.  Page 3 hyphenate self-created.  Page 4 remove extra s from representative.  Page 6 insert i in variance.  Page 7 hyphenate self-created and correct Dunn on the vote.

 

3.         PUBLIC HEARINGS.

 

a) Petition No. 04-11 – Shirlene’s Cuisine, Inc. for an area/dimension variance to remove the current sign (facing Eastman Avenue) and replace with a new sign facing Wackerly Street, at 1716 West Wackerly Street.

 

Mr. Lynch showed the subject property on a local area map.  The off-ramp that formerly came down off US-10 has been relocated to the west.  To the south of the subject property, there is a large area of OS-2 zoning.  The parcel is a bit of an odd shape.  Along Wackerly Street, the frontage is roughly 210 feet.  The depth of the parcel is approximately 170 feet.  An aerial view of the property was presented.  There is a park-and-ride parking lot here at the present time; however, this use will be changing in the near future.

 

The request this evening, if approved, would remove an existing pole sign at this location and be replaced with a new pole sign on West Wackerly Avenue.  The zoning ordinance permits only one ground pole sign for each parcel.  The subject property was annexed into the community in 1978 and the pole signs were on the property when it was annexed.

 

The petitioner is interested in removing the older pole sign and replacing it with a new pole sign.  Board members received the petitioner’s responses to the criteria along with the staff report for the case.  An affirmative vote of a majority of ZBA members is necessary to approve this variance request.

 

This intersection is a very heavily traveled intersection – on the corner of Eastman and Wackerly.  The long-term plan by the State of Michigan is not to convert the property into some other use that will generate more traffic.

 

Hank asked if Shirlene’s could rotate the sign if they chose to do so.   Jon stated that they could.  However, if the sign were destroyed by some act of nature, it could not be rebuilt at this location.

 

No one appeared to represent the petitioner at this hearing.

 

No one from the public spoke in favor of or in opposition to this request.

 

Motion to table petition 04-11 until the next regularly scheduled meeting of the Zoning Board of Appeals, with the condition that the petitioners be notified and strongly suggested they appear at the next meeting.  It was moved by Sutton and supported by Dunn.  All were in favor.

 

b) Petition No. 04-12 – CESO, Inc. on behalf of Wal-Mart Stores, Inc., 910 Joe Mann Boulevard, for an area/dimension variance from the maximum allowable sign area.

 

Mr. Lynch showed the subject property on a location map.  The zoning was shown on a zoning map.  Surrounding zoning is Business C and some Residential B to the north.  The subject property is about 900 feet long along the southern boundary.  There is an existing Wal-Mart store at this location that is undergoing an expansion. 

 

Elevation drawings have been provided by the petitioner.  With respect to signage, there are a number of areas along the façade of the structure the food canopy, the Wal-Mart Super Center sign, a canopy sign along the southern entrance, and some incidental signage next to the garden area. 

 

This signage was originally approved on December 16, 2003.  The ZBA approved to allow signage to 1200 sq. ft.  Wal-Mart has redesigned their signage and now requests only 1198 sq. ft.  The findings of fact and the reasons for approval have been presented in your packets for review. 

 

Higgins had the minutes of that meeting.  According to the minutes, it says that a motion was made, conditioned upon the total sign area being 600 sq. ft. or less.  The current request is well in excess of the 600 sq. ft. that was granted.  This petition is requesting a deviation from the initial request, so it should be treated as a brand new petition.

 

The overall length of the building has not changed since the original petition was presented in December.  Hank states he does not see the dimensions of the individual signs in this packet.  He will ask that question to the petitioners.

 

Higgins stated that the dimensions of the building have not changed and his opinion has not changed.  He would like to move forward with this petition.  Tim Lichtenwald agrees.  Sally Sutton agrees, also. 

 

Jack stated the zoning ordinance would allow 600 sq. ft. of signage if the side of the building, facing the street, were really the front of the building.  That is how we arrived at the 600 sq. ft. in December.  It is up to the petitioner to decide how to use that 600 sq. f.

 

Robert Matko appeared to represent Wal-Mart.  This is almost the identical request that was submitted in December.  What they are asking for essentially, is a continuation of what was approved previously.  It was a 6-month time frame.  This seems like it is a lot of square feet, but this is a very large store front.  The signs would only be 5-6 percent of the front of the building.  They are requesting 1198 sq. ft. due to the large size of the store front.

 

Ms. Sutton asked the petitioner if he understood that the ZBA only granted a variance of up to 600 sq. ft. at their December meeting.  He stated that he did.  The previous variance did expire as it was not used within the 6 month time frame.

 

Hank asked the petitioner why 600 sq. ft. is not enough.  Mr. Matko stated the building is set back off the road quite a bit and the additional signage is needed to identify portions of the building.  The checkout lanes are between the two major entrances.  Hank compares this request to the Wal-Mart in Saginaw that is located behind a large Sam’s Club.  The only way you know the Wal-Mart is there is by the pole sign out by the road.

 

Ms. Sutton requested the signage schedule, like the one submitted in December.  She would like to know why they feel they cannot work with this.  She feels the findings of fact that were listed in December seemed adequate and still apply. 

 

Mr. Matko stated that if the ZBA cannot find it within themselves to approve the 1198 sq. ft., would they please approve the 600 sq. ft. that was approved in December.  Then, he felt they were more than 6 months out and perhaps they should not have requested the additional signage at that time.  Now they are certainly within the 6 month time frame so they will not have to come back again.

 

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

 

Findings of Fact:

 

            1.         The property is zoned Business B-2.

            2.         The west wall is 1050’ long.

            3.         The distance to Joe Mann Boulevard from the south wall is approximately

                        108’.

            4.         The current entrance is 350-400’ from Joe Mann Boulevard.

            5.         The proposed sign area is 1236 sf.

6.         The total sf of the new Wal-Mart “Superstore” will be approximately 200,000 sf; this is approximately 50,000 sf larger than Meijer.

            7.         No external communications were received.

8.         The existing pole sign will change but will comply with the sign area requirements.

9.         Joe Mann Blvd. has an unusual curve in relation to the west wall of Wal-Mart.

10.       December 30, 2003, signage schedule within 600 sq. ft. was submitted.

11.       Variance granted December 16, 2003 has now expired.

12.       Less sq. ft. of signage is requested now (1,198 sq. ft. vs. 1,230 sq. ft.) than requested originally.

13.       Variance granted in December 2003 allowed up to 600 sq. ft. of signage.

           

Higgins moves to approve zoning petition No. 04-12, based upon the findings of fact, and conditioned upon the total signage area not to exceed 600 sq. ft.  Seconded by Sutton.

 

Higgins does not believe the zoning ordinance addresses buildings that do not face the street as Wal-Mart does.  He feels this would make the 200 sq. ft. unnecessarily burdensome.  (See December minutes).

 

Lichtenwald agrees with Higgins.  Sutton has nothing to add.  Holthof says his position has changed since December.  Home Depot is set way back from the road and they rely on their pole sign out at the road.  The Wal-Mart in Saginaw relies on their pole sign at the road and no one has a problem finding it.  After you have been in the store once or twice, you know which entrance you want to go in.  The extra signage could create confusion.  He is against the additional signage.

 

Vote on the motion:

 

Yea:     Dunn, Higgins, Lichtenwald, and Sutton

Nay:     Holthof

 

The variance has been approved for 600 sq. ft.

 

c) Petition No. 04-13 - Trudy Laufer on behalf of Cleveland Manor, Inc., 2200 Cleveland Avenue, for an area/dimension variance to waive the set back requirement along a new east/west property line separating connected buildings.

 

Mr. Lynch presented the subject property, in a residential zoning classification, on a location map.  It falls within the Residential B zoning category.  The subject site is roughly 650 feet in each direction.  The aerial photograph shows the structures in somewhat of a star-shape.  The petitioners are requesting a dimensional set back variance that will allow them to divide the subject property.  While this is a unified parcel of property at the moment, the variance will allow them to divide this property.  The petitioners are requesting this, based upon a regulation by the US Dept. of Housing & Urban Development.  This variance would enable the petitioner to petition for a land division, enabling them to create two separate parcels of property with two separate property descriptions and two separate tax ID numbers.  An affirmative vote of a majority of the members is required to permit this variance.  The planning dept. received a visit from one neighbor who asked a series of questions, but did not respond either in favor of or in opposition to this request. 

 

Ms. Sutton asked if there could be a condition in the motion that, if this building were torn down, the normal ordinance requirements would take effect.  Mr. Lynch stated that they have to either grant the variance or deny it.  It cannot be tied to a particular owner or to a building on that property.

 

Mr. Jim Schroeder, from the Board of Directors of Cleveland Manor, spoke on behalf of the petitioner.  This building was constructed in two phases.  At the time the second phase was constructed, there was nothing that required the facility to be located on two parcels.  The structure itself has been designed for a second phase to mirror image the initial phase.  Approx. 2 years ago, HUD came to the Board and required them to obtain a new federal identification number; one for phase one and one for phase two.  They also had to obtain a second 501C(3) to have one for each phase.  What will happen if you don’t grant us the variance, we are not sure?  This has been going on for quite a period of time.  They are not financially liquid enough to hire lawyers to go against HUD to try and get things changed. 

 

They are not able to comply with the ordinance as half of the building would have to be destroyed.  The property is surrounded on the west and on the south by single family homes.  On the north, there are some single-family homes.  You have some condominiums to the north and to the east.  Along the south border of the property, there is a vacated street.  They do not see this as impacting surrounding properties in the neighborhood.  The unique circumstances are due to HUD’s regulations, not to Cleveland Manor.  Prior to the 1970’s, they were in compliance with all regulations.  Why this has come about now, they do not know.

 

The Cleveland Manor Board has spent considerable legal fees in complying with the first two requirements.  There would be additional legal fees if they had to go back to HUD without the variance.  Cleveland Manor has mortgages with HUD until about 2014 for the north part and 2020 for the south part.  They are committed until those years to provide housing for senior citizens.   The rents in the north half are set by HUD and they are some of the lowest rents for senior citizens in the community.  In the south section, the rents are based upon income – the people pay 30% of their income for rent.  They are having to pay a lot more money than expected for maintenance costs. 

 

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

 


Findings of Fact:

 

1.      Zoned Residential B.

2.      Was constructed as a two phase project in accord with the zoning ordinance and with HUD requirements at those times (1966 for phase one and 1979 for phase two).

3.      New HUD requirement for parcel division was instituted after construction was competed.

4.      Cleveland Manor complex has a federal identification number for each building and a 501C(3) status for each building, as required in 2002.

5.      City’s building department indicates that code requirements have been satisfied as the buildings are now constructed.

6.      One inquiry, with some questions, was received.

7.      HUD is now requiring a parcel split between phase one and phase two.

8.      Cleveland Manor is a 501C(3) non-profit organization for senior citizens.

 

A motion was made by Higgins and seconded by Dunn to approve Petition No. 04-13, based upon findings of fact.

 

Sutton agrees with all the comments to the criteria given by Mr. Schroeder.  Strict compliance would render conformity unnecessarily burdensome.  Variance would do substantial justice to the applicant.  Plight of the owner is due to unique circumstances not so much of the property, but of the requirements of HUD when it was constructed in 1969.  Now HUD requires the splitting of the property after the building already exists.  The problem is not self-created in that they complied with the rules and regulations in existence at the time the building was built.

 

Higgins – agrees with Sutton.

 

Lichtenwald – agrees with Sutton.

 

Holthof – agrees with Sutton.

 

Vote on the motion:

 

Yea:     Dunn, Higgins, Holthof, Lichtenwald and Sutton

            Nay:     None

 

The variance was approved.

 

A motion was made by Higgins and seconded by Dunn to remove petition No. 04-11 off the table.  Sutton feels that, as the petitioner was not here at 6:30, we should move on with the next petitions.  Motion passes unanimously.

 

Petition No. 04-11 – Shirlene’s Cuisine

 

Roger Klemkoski – Shirlene’s Cuisine – The way the city was set up with the main traffic coming down Eastman Road, caused 15,000 cars per day to travel along this road.  When they purchased the property, 18years ago, Wackerly Road was a dirt road.  They are a small family business and they would like to strengthen the business by having larger signage.  The US-10 exit ramp has now been relocated further to the west.  This sign is taller so it can be seen from Eastman Road, when people are traveling to and from the mall area.  They have no desire to remove the larger sign.  They want to remove the smaller sign and replace it with a larger sign. 

 

Higgins asked if they would you be willing to put a wall sign up instead of a pole sign?

 

Mr. Klemkoski stated that they have some estimates on wall signs now.

 

Higgins asked how would you feel about taking the big pole sign down and replacing that with a wall sign.

 

The entranceway committee wants to put in trees and shrubs and bushes so they will be blocking Shirlene’s Cuisine from Eastman Road. 

 

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

 

Findings of Fact:

 

1.      Zoned Business B-2.

2.      Zoned OS-2 across Wackerly Street, to the south.

3.      Property was annexed in 1978, apparently with 2 ground pole signs in place.

4.      Other businesses exist on Wackerly Street that have one pole sign.

5.      No communications received.

6.      Lot to the east is an MDOT parking lot to be removed and relocated.

7.      Exit ramp was moved from the north side of the restaurant to the west side.

8.      Section 31.5(b) and Section 31.11 of the zoning ordinance references the non-conformance of this sign.

9.      Speed limit on W. Wackerly is 35 mph and on Eastman Avenue is 45 mph.

10.  Property purchased in 1986 with 2 pole signs.

11.  Single 42 sq. ft. pole sign permitted on Wackerly Road.

 

A motion was made by Higgins and seconded by Sutton to approve Petition No. 04-11 based on findings of fact, conditioned upon the owner of Shirlene’s Cuisine not installing ANY wall signs.

 

Higgins feels the property is unique and the problem is not self-created.

 

Sutton does not feel strict compliance would prevent the property to be used for its permitted purpose.  The applicant feels it would do justice but she does not feel it would do justice to the surrounding properties.  There are no unique circumstances about this property.  The problem is self-created because they want to do something the ordinance does not allow.

 

Lichtenwald agrees with Jack.  He feels all the criteria are met.

 

Dunn agrees.  He feels all the criteria are met.  There have been changes in the traffic flow.  Who knows that will go into the lot next to it when that park-and-ride lot is eliminated?  He can certainly see where a sign on Wackerly Street would be beneficial, where there is increased traffic flow.  He does not feel the problem is self-created with the construction of the new interchange.  This has created changes in the traffic flow.  The petitioner did not have anything to do with that.

 

Holthof agrees with what has been said.  He thinks there is substantial justice to surrounding property owners because beautifying that end lot would help all the surrounding properties.  If the vegetation is too thick, no one will see the business due to the vegetation.

 

Vote on the motion

 

Yea:     Dunn, Higgins, Holthof and Lichtenwald

Nay:     Sutton

 

The variance was approved.

 

The board took a five minute break . . .

 

d) Petition No. 04-14 – Frank Cergnul for an area/dimension variance to permit a garage addition in a required side street yard at 6004 Harwood Drive.

 

It is zoned single-family, residential property.  The property is roughly 106 feet wide at the street frontage.  The aerial drawing shows the subject structure and the attached garage, roughly at the northerly side of the subject structure.  The request tonight would allow for an expansion of the attached garage.  Sec. 24.1(A) requires a setback of 20 feet.  The existing garage is 23 feet from the property line.  The proposed addition would come within 9’ of this property line.  The petitioner provided a number of photographs regarding the subject location.  A view of the house is shown and a view of the area where the addition would take place.  Based on the calculations we performed, roughly half of the proposed garage addition would fall within the required side yard setback.  The petitioner has provided comments addressing the four review criteria.

 

No communications were received from the public.

 

Frank Cergnul, the petitioner, tried to provide everything they might need.  He has about 3-1/2’ wide retaining wall on the court side, that is right on the sidewalk.  The east end of the proposed garage would be about 15’ from that retaining wall.  The west end would be about 25’ from that retaining wall. 

 

Holthof is confused about this problem being self-created.  How is it not self-created?

 

Mr. Cergnul guesses it is self-created in that he wants the additional garage area.  He has a special vehicle that he likes to maintain.  He wants to keep his lot as clean as possible.  His wife and daughter both have vehicles that he would like to keep in the garage.  He just purchased this property a month ago.  The petitioner states that this is self-created as he wants the additional area to put the cars in. 

 

Holthof asked if he had looked at any alternatives for positioning the garage on the property. 

 

Mr. Cergnul states this would enable him to leave all the existing vegetation intact. 

 

Findings of Fact:

           

1.                  Zoned Residential A-1.

2.                  Housing is located on a corner lot of a court.

3.                  No communications were received.

4.                  The existing two-car attached garage is located approximately at the side street yard setback of 20 feet.

5.                  Lot is not significantly irregularly shaped since it is approx. 107 feet by 150’.

6.                  The house is located more in the rear yard and faces the front.

7.                  Property was purchased approximately one month ago by the petitioner.

8.                  A retaining wall of approximately 3-1/2’ high exists on Harwood Court side with a lot of vegetation between the retaining wall and the existing garage.

9.                  The house is positioned angular to the lot.

10.              The house sits more than 3-1/2 feet above Harwood Court.

11.              Lot is not unique in nature.

12.              ½ of proposed garage is in the required side yard setback.

 

Motion by Sutton and seconded by Holthof to approve Petition No. 04-14 based on findings of fact.

 

Holthof stated he can’t get around the problem of self-created.  He feels it is self-created.  Not being able to get around that one, the other three are mute points.  The petitioner has not brought other options before the Board tonight.

 

Sutton also feels the problem is self-created.  She does not see any barriers to using the property for its permitted purpose.

 

Higgins agrees with Sutton.

 

Lichtenwald stated criteria one and four have not been met.  There are no three-car garages in that neighborhood that he could see.

 

Dunn agrees with what has been said.  He thinks other options may be available to the petitioner.

 

Vote on the motion:

 

            Yea:  None

            Nay:  Dunn, Higgins, Holthof, Lichtenwald and Sutton

 

The variance was denied.

 

e) Petition No. 04-15:  William Pike for an area/dimension variance to permit the construction of an addition connected to the existing structure in a required side yard at 2816 Ronan Street.

 

Subject site falls within the RA-3 zoning classification.  Off to the west we have an RB zoning classification.  The subject site is 130’ deep and roughly 65 feet wide at the front and rear.  The aerial photograph shows the single family residence on the lot and that there is the space for a walkway between the two dwellings.  Regarding the subject of the petition, the petitioner seeks to construct an addition to the rear of the subject structure.  The ordinance requires setbacks of a minimum of 7 feet and a total of 16 feet.  The overhang is actually located at the property line. 

 

The petitioner is asking to add a 24’ addition to the rear of the home.  The 4’ overhang would also be continued so that it would be located at the property line.  The wall would continue an additional 12’ to the east and the overhang would continue an additional 12’ to the east, corresponding to the wall.  The property was built in 1957.

 

One letter was received in support of this petition, from 2912 Ronan Street.

 

There is no existing variance for this property.

 

William Pike had a picture of the property.  This is a picture of the walkway that goes between the properties.  He wants to extend the back and the unique roof line that is there now.  He wants to keep the architectural lines of the building consistent.  They don’t want to move it to the south as there is a ginko tree there they are trying to save. 

 

Sutton stated this offset would not be visible from the front.  A lot of people in Midland are building sunrooms onto their homes.  Is there any reason you cannot move the sunroom more to the north?

 

Mr. Pike stated the sunroom will be built off the living room, where it would give them more living space, rather than off a bedroom. 

 

Sutton states she would like the petitioner to please address criteria #1 and #4, the problem of self creation.

 

Mr. Pike stated that he didn’t build the house nor did he build the 4’ overhang.  He bought this house in its existing condition.  It is an extremely well built house.  He did not realize he was that close to the property line, nor did he realize that he was not in compliance with the zoning laws.   They would move it over by 3’, but he feels this would lessen the value of the house compared to the way it is designed now.  They could cut down the ginko tree, which was planted in 1957 by the first owner.

 

They wanted the long direction of the room to be where it is as the house faces east.  They want to keep it architecturally the same as it is now.

 

Higgins states that, because they only have 7 feet on the other side of the house and they have to have a total of 16’ total setback, they must have a total of 9 feet on this side.

 

Petitioner states this will be built from scratch.  It is not a sun-room kit.

 

Sec. 29.9(3), states the overhang may project into the required side yard by 3 feet or less.  Right now he is projecting 4’ and that is right up to the property line.

 

No one spoke in favor of or in opposition to the request.

 

Finds of Fact:

 

1.                  Zoned Residential A-3.

2.                  One letter in support was received.

3.                  House was constructed in 1957.

4.                  Purchased by petitioner in 1978.

5.                  Structure is legal non-conforming.

6.                  Addition would enlarge nonconformance in north side yard.

7.                  Wall of existing structure exists to within 4’ of the north lot line.

8.                  Overhang on the existing wall on the north side extends to the property line.

9.                  A 10’ wide park walkway exists at the northerly side lot line.

10.              The rear yard dimensions would allow the sunroom to be constructed to the east within the limits of the zoning ordinance.

11.              Other options exist for the petitioner.

12.              If the proposed structure is shifted east, it will be in the middle of the bedroom window.

 

A motion was made by Holthof and seconded by Lichtenwald to approve 04-15 based on findings of fact.

 

Sutton stated she cannot meet criteria #1, #3 or #4.  She does not see why the property cannot be used for a permitted purpose without the sunroom addition.  The problem is self-created, in that the option the petitioner wants to violate the ordinance.

 

Dunn stated there is some uniqueness to this property.  The eaves are quite unique in their size.  They are larger than standard eaves.  In 1957, houses were built much smaller than they are today.  If they are to be added onto, it is important to maintain the architectural lines of the existing structure.  He can support these criteria based upon if we require them to use the existing criteria, it will look somewhat odd.  If built as planned, it should add uniqueness to the neighborhood and add value to surrounding properties.  The problem is not self-created if a person is interested in remodeling an older house to today’s standards. 

 

Lichtenwald stated the larger overhang is unique to the house itself, but not necessarily to the property.  Strict compliance would not be burdensome as this addition could be designed to keep the ginko tree.  The problem is self-created in the placement of the addition where they want to put it.  There are other options to put the addition on and still maintain the uniqueness of the house.

 

Higgins feels very much empathy for the owners of this house.  They are 10’ from the neighbor with the 10’ walkway.  This is a unique feature of this property.  He cannot meet item #1 and #4.  We have an aesthetic situation here, where the house would look better if the roof lines are maintained.  He cannot get by the criteria of self-created.  There are certainly other options.

 

Holthof feels the walkway is a key feature here.  The self-created feature is that the current zoning code was adopted in 1967 and this house was built in 1957.  He cannot help wondering if this was an accepted method of building right up to the easement prior to the existing zoning code.  If you shift or turn the proposed sunroom, it would not look right with the rest of the house.

 

Vote on the motion:

 

Yea:  Dunn, Higgins and Holthof

Nay:  Lichtenwald and Sutton

 

The variance was approved.

 

4.         Public Comments.

           

            None

 

5.         Old Business.

 

City Council’s policy on Board & Commission attendance policy.

 

6.         New Business.

 

Consideration of 2005 meeting calendar.

They will continue with the 3rd Tuesday meetings at 6:30 p.m.

 

7.         Decision sheet signatures.

 

 

8.         Adjournment.

 

The meeting adjourned at 9:25 p.m.

 

 

Respectfully submitted,

 

 

 

Jon Lynch, AICP

Assistant City Manager