MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, NOVEMBER 16, 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:            Daryl Poprave, City Planner; Cheri

Standfest, Community Development Specialist, Richard Siemer, ZBA alternate; and eight people in the audience.

 

2.         APPROVAL OF MINUTES.

 

It was moved by Higgins and supported by Sutton to approve the minutes of the September 21, 2004 meeting.  The motion was unanimously approved with the several corrections.

 

3.         PUBLIC HEARINGS.

 

The Chair explained the Zoning Board of Appeals hearing procedures to those in attendance.

 

a)      No. 04-16 – Mike Lapham for temporary permit amendment to allow seasonal sales of nursery stock items at 1412 N. Saginaw Road.

 

The secretary presented a location map showing the location of the subject property, for 1412 N. Saginaw Road.  The property is north of Saginaw Road and east of Eastman Avenue.  To the east are a car wash and the new Pizza Hut.  There are other commercial structures in the area on Saginaw Road.  The zoning of this parcel is Business B-2.  Next to it, we have OS-2; behind it are RB, and RA-1 and RB to the south.  The aerial photograph shows the area as it was in 2002.  The subject property is still in this present vacant condition. 

 

Before you tonight, we have Mike Lapham.  He is interested in a temporary permit to use this property for the seasonal sale of flowers from April 15 to July 15, and he wants to sell pumpkins and other fall nursery stock from September 1st to October 31st.  He wants to sell garland, trees and Christmas items from November 20th to December 25th.  He can operate this type of business in this zoning district by right.  Staff’s interpretation of the principal use definition is that the zoning ordinance can regulate use of property but cannot dictate that there is a permanent structure constructed on the property.     However, the zoning ordinance does require that paved off street parking, lighting, curbs, drainage, and screening be provided for each permitted use.

Sec. 34.5.c.1 gives the ZBA the power to permit temporary permits. 

 

In accordance with Section 34.5(c)2 of the Zoning Ordinance, the Board may grant temporary permits under the following conditions:

 

a)  The granting of the temporary use shall in no way constitute a permanent change in the basic uses permitted in the district nor on the property wherein the temporary use is permitted.

b)  The granting of the temporary use shall be granted in writing, stipulating all conditions as to time, nature of development permitted and arrangements for removing the use at the termination of said temporary permit.

c)  All setbacks, land coverage, off-street parking, lighting and other requirements to be considered in protecting the public health, safety, peace, morals, comfort, convenience and general welfare of the inhabitants of the City of Midland, shall be made at the discretion of the Board.

 

d)  In classifying uses not requiring the erection of substantial buildings, the Board shall determine that they are either demountable structures related to or readily usable for the permitted use of the land; recreation developments such as, but not limited to: golf-driving ranges and outdoor archery courts; structures which do not require foundations, heading systems, or sanitary connections; or structures which could readily be converted for a permitted use and when so converted would not be non-conforming in any respect.

 

e)  The use shall be in harmony with the general character of the area.

 

There was some parking along the private drive, but because it is a private drive, the police dept. does not have the authority to enforce no parking.  There is a gravel area on the north side and some to the east of the vacant outlot.  There is drainage on the site by way of a catch basin in the center of the site.  There is also electrical power on the site.

 

Sutton – the hours they are requesting this time is from 8:00 a.m. to 10:00 p.m.  The hours approved before were 10:00 a.m. to 8:00 p.m.  He is asking now for additional hours of operation.  She is concerned that lighting will be cast off site and the condo owners will be adversely affected by the headlights from the cars in the winter time.

 

Higgins – On the staff report, it states this is an amendment to the temporary permit.  This permit has expired and it has to be re-approved by the ZBA anyway.

 

Holthof – The new zoning ordinance does not allow for temporary permits. 

 

Secretary – No further temporary permits will be granted under the new ordinance. 

 

Holthof – What is the city’s position on others that operate these temporary businesses (i.e. Christmas tree sales by Farmer Jacks, etc?)  If they don’t have a temporary permit, why does this petitioner need a temporary permit? 

 

Secretary – Christmas tree sales are done on a private agreement between the sellers and the property owners.  These situations are inspected by Chris Coughlin, our fire inspector.  In most of these cases, they are on a paved lot and there is parking lot lighting.  Thus the requirements of the zoning ordinance are met unlike the current petition.

 

Sutton:  #7 states a $500 bond would have to be posted before the property would be occupied.  How often would this $500 bond be posted?

 

Secretary – It would be an ongoing thing.

 

Petitioner, Mike Lapham, 2816 Scott Street, Midland.  We would like to petition for more time upfront and include additional times in the fall, currently we run from May 1st to the end of June.  We would like to go two weeks before May and two weeks into July.  The hours of operation need to be adjusted due to the winter hours.  They would like to sell mums and pumpkins in the fall.  People do not buy flowers after dark.  As it goes for the winter Christmas trees, he would also sell trees and wreaths for Christmas.  Last season, he did not have any problems with parking.  We received letters from the folks in the condos stating there were no problems with the parking.  The car wash owners and employees seemed to be very pleased with us as well.  He really had no negatives from this experience at all.  Typically the season is just during the daylight hours.

 

Sutton – What about in the winter time – for the tree sales.  That would be after dark wouldn’t it?

 

Lapham – We would like to install some lights, just for our operations and display decorations.

 

Higgins – Would it be acceptable to you only to be open during daylight hours?  That would mean you would have to close at sunset.

 

Lapham – I think we could live with that.

 

Higgins – At our original hearing last year, you had a written agreement with the property owner to use that parking lot for your employee parking.  Do you still have that agreement?

 

Lapham -  Yes.  They are willing to move their employee parking 6 months of the year.  We had no complaints.  Again, we’ve heard nothing but positive comments from the condo homeowners behind us.

 

The Board is generally concerned with light trespass, site illumination as it concerns safety, hours of operation, the flow of traffic on and off site and screening from adjacent properties. 

 

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

 

Findings of Fact:

 

  1. 1412 N. Saginaw Road is zoned Business B-2.
  2. No communications received from the public hearing notification.
  3. Letter from Hidden Pines Condo dated May 19, 2004, indicated harmony between the business and the residents of the condos.
  4. Petitioners desire 3 selling periods for a temporary permit
    1. April 15 – July 15.
    2. September 1 – October 31.
    3. November 20 – December 25.
  5. A tent will not exceed 40’ x 120’, and inspected by the Fire Department.
  6. Power and water is accessible to the business owner.
  7. The out lot area is 150’ x 150’.
  8. The primary access is via a private drive (Hidden Pines) to North Saginaw Road and a secondary access is a right-in/right-out driveway.
  9. The area for the proposed use is vacant and unpaved.
  10. No permanent structures shall be constructed with the proposed use.
  11. Residential property is located to the north.
  12. According to the petitioner, parking is provided on the north side and observed on the east side of the vacant lot. 
  13. “No Parking” signs erected on the Hidden Pines drive.

 

The secretary showed a copy of the approved site plan for Fast Eddie’s car wash, showing the site lighting, parking and screening that presently exist on the property. 

 

Higgins and Holthof – Exterior lighting shall not cast outside of the tent and the hours should be from 9 AM to 9 PM for all three selling periods.

 

It was moved by Higgins and seconded by Holthof to approve zoning petition no. 04-16 based upon the findings of fact with the following conditions:

1)      Hours of operation will be from 9AM to 9PM.

2)      Sales will be limited to those items listed in the staff report of 04-16.

3)      The tent is not to exceed 40 x 120’.

4)      The primary access is via a private drive to North Saginaw Road and secondary access is a right-in/right-out driveway.

5)      The permit will be from April 15th to July 15th, Sept. 1st to Oct. 31st, Nov. 20th to Dec. 26th.  This will begin with the 2005 season.

6)      This permit will be reviewed annually by the ZBA, indefinitely.

7)      A $500 bond shall be posted prior to operation of business, and shall be renewed before each subsequent period of operation.

8)      Lighting shall be permitted meeting the following conditions:

a)      Within the tent structure.

b)      On displays such as Christmas trees.

c)      Current lighting as identified by the property’s original site plan will service the parking and driveway areas.

9)      Parking shall be provided by the owner along the north property line, consisting of approximately 11 spots, which shall be reserved for patrons of Lapham’s Flowers.

 

Dunn – At what point should they do something more permanent?  You are going to have this tent up during 6 months of the year.  It doesn’t seem like it is temporary any more.

 

Holthof – It is because there is no permanent structure that it is a temporary permit.

 

Dunn – I think it is assumed that it is going to be renewed unless there are problems.  Maybe we need to encourage something more permanent to be done.

 

Dunn – I would propose an amendment to the motion to allow this for 3 years.  If they want to do something permanent then, this would allow them to do so.  Sutton seconded the motion.  Jack was not willing to allow the amendment to his motion.

 

Vote on the amendment to limiting the approval for 3 years:

 

Lichtenwald:  no

Sutton:  yes

Holthof:  no

Higgins:  no

Dunn:  yes

 

The amendment does not carry.

 

Addressing the criteria:

 

Higgins - We have addressed the majority of the criteria with the conditions put on the motion.  The property is of the character of a Business B-2 area.

 

Holthof – Agrees with Jack.  We did not hear anything negative back from the condo community.

 

Tim – Agrees with the 5 items Jack and Hank mentioned.

 

Sally – Has a problem, not with the fact that they are selling flowers, but that the requirements of the zoning ordinance are being circumvented by using a tent rather than a permanent structure.  She doesn’t think this is the intent of the zoning ordinance.

 

Joe – Did not have a problem with this when they first came to us.  However, now it is becoming more permanent and the new zoning ordinance does not allow for temporary uses.

 

Vote on the motion: 

Higgins – yes

Holthof - yes

Lichtenwald – yes

Sutton- no

Dunn - no

 

The temporary permit for 1412 N. Saginaw Road is granted for 2005.

 

b)   No. 04-17 – Richard Jellum for an area/dimension variance to permit a new ground sign to be constructed within the required setback and over the maximum height at 3417 W. Main Street.

 

The secretary showed the area map, indicating the subject property.  This is a dimensional variance brought forth by Richard Jellum, who is an employee of the Midland Center for the Arts.  This is for property located at 3417 West Main Street.  This property is a rather large parcel.  It is over 3-1/2 acres in size.  It backs up to Emerson Park and the Pere Marquette Rail Trail.  This site houses the brand new Midland County Historical Center.  The parcel is in RA-1, residential.  To the west and north, is RB and contains a lot of Northwood student housing.  To the east is a Community district, housing Emerson Park.  North and South of the property is RA-1.  To the southeast is RB (in the flood plain) and Agricultural as well.

 

The aerial map shows the property before the building was built.  The secretary showed the plan as presented to the Planning Commission, showing the existing structure.  The applicants would like to place a sign on the entry island (driveway separation) to the subject parcel.  The sign would be located adjacent to the public ROW.  Our zoning ordinance requires a setback of 5’ from the property line.  The petitioners do not feel they can comply with that separation. 

 

If approved, the construction would result in a 31 sq. ft. sign, where 32 sq. ft. is the maximum permitted for a non-residential use in this district.  The ordinance states the signs must be set back 5’ from the property line and cannot exceed 5’ in height.  Because of the way the ordinance defines sign height, they feel the sign will end up at 6’9” above original grade.

 

In accord with Section 34.5(b) 1 of the Zoning Ordinance, the applicant must show practical difficulty in meeting the zoning requirements by demonstrating that all of the following conditions exist:

 

  1. Strict compliance with area, setbacks, frontage, height, bulk or density would unreasonably prevent the owner from using the property for a permitted purpose, or would render conformity unnecessarily burdensome.
  2. A variance would do substantial justice to the applicant as well as to other property owners in the district.
  3. The plight of the owner is due to unique circumstances of the property.
  4. The problem is not self-created.

Randy Sherman of Three Rivers Construction (representative for the petitioner) – They are a little bit challenged on the sign, given the size of the sign and the proximity to the property line.  The grading that occurs is due to the need to raise the building above the 100 year flood plain elevation.  This has caused a severe grade change on site and has resulted in the need for this variance.  When we deduct a foot for snow and add to that, some landscaping, and then we consider the speed limit on this road, we need that increase in height for visibility. 

 

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

 

Jack Higgins discloses that he is a volunteer at the Midland County Historical Society, but he does not feel this will affect his decision making ability.

 

Findings of Fact:

 

1)  The property at 3417 W. Main Street is zoned RA-1.

2)  Two letters in support from the Center for the Arts and the Dow Foundation.

3)  The property is approximately 3-1/2 acres in size.  It is an odd-shaped corner lot

      bounded by W. Main St. & Cook Rd.

4)  Land is owned by the Herbert H. & Grace A. Dow Foundation.

5)  The strict floodplain requirements caused the steep grade slope and thus made it

      necessary to seek a variance to erect a visible sign.

6)  The land across the street is undeveloped land and owned by the Dow Foundation.

7)      The proposed sign location will not present a safety hazard for traffic or pedestrians

8)      The ground sign area is to be 31 sq. ft.

9)      The speed limit is 40 mph on W. Main Street.

10)  The proposed road sign design is depicted in attachment 2.

11)  The proposed sign location is shown in attachment 1.

12)  The drain tile is 3’ behind the island curb on the property line side.

 

It was moved by Sutton and seconded by Lichtenwald to approve petition no. 04-17 based the on the findings of fact.

 

Sutton – The petitioner did a fine example of addressing the criteria.  This is not self-created by the fact of the flood plain and the drainage tile location on the site.

Tim, Joe, Jack and Hank agree.

 

Vote on the motion:

Sutton – yes

Lichtenwald – yes

Higgins – yes

Dunn – yes

Holthof – yes

 

The dimensional sign variance for 3417 West Main Street was approved unanimously. 

c)   No. 04-18 Barry & Falgumi Patel for an area/dimension variance to permit occupancy of a dwelling unit addition on the first floor of a business establishment at 1815 S. Saginaw Road.

 

The secretary presented a location map showing the location of the subject property, for 1815 S. Saginaw Road.  The property is north of S. Saginaw Road and east of E. Haley Avenue.  There are other commercial structures in the area on S. Saginaw Road.  The zoning of this parcel is Business B-2.  Next to and south of it, we have BB-2; behind it are RA-1, RA-2 and RB to the east.  The aerial photograph shows the area as it was in 2002.  The subject property is still in this present condition.  In addition the parcel map shows the unique shape of this parcel (similar to an inverted Y) and property dimensions.

 

If granted, this variance will allow the expansion of a nonconforming dwelling unit on the first floor of a business establishment which will encompass an unused retail space.  The existing manager's unit was built in the early 1960’s and the retail space was originally the motel office.  This portion of the building has always been one story.  When the building was expanded in the 1970’s, the office was moved to the back of the property in the second building.  The applicants are living in the manager’s apartment and it is a space issue.  They would like to use this retail space as a 22’ x 15’ living room and attach it to the residential portion.

 

Falguni Patel.  She resides at 1815 S. Saginaw Road, Midland.  When she purchased this place, she was not aware of Midland’s laws.  They are a family of six, four adults and two children.  The current living space is small.  This office area has not been used for retail for over a year now (July 2003).  Also, the middle portion of the current dwelling unit does not have a second story above it.  However, the bedrooms do.  Thus, they want to utilize it for dwelling purposes because they just need more space. 

 

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

 

Findings of Fact:

 

1)      1815 S. Saginaw Road is zoned Business B-2.

2)      Property is an odd-shaped lot with 10 lot lines.

3)      The first floor dwelling occupancy is a legal nonconforming use.

4)      The original dwelling unit was built in the early 1960’s, before adoption of the 1967 zoning ordinance.

5)      The original motel was built with an office space out front adjacent to the manager’s dwelling unit.

6)      The office subsequently was relocated to the back of the property in 1974.

7)      The unoccupied commercial area has not been utilized as retail space for approximately 1 year.

8)      The commercial space in the front of the building is only 22’ x 15’.  It is too small for retail use.

 

It was moved by Higgins and seconded by Sutton to approve zoning petition no. 04-18 based upon findings of fact.

 

Higgins – To use this space for anything other than what they want to use it for, is not reasonable.  The variance would do substantial justice to the applicant and it does not hurt anyone else in the district.  The unique circumstance is the very small retail space and the fact that they have a nonconforming manager’s apartment in the back on the first floor of this space. 

 

Sutton - Agrees with Jack.  The office space is too small for modern retail operations. There isn’t much difference between using that for office space or as living space.  It does not adversely impact the neighborhood.

 

Dunn – Agrees.  This area is too small for a retail space.

 

Lichtenwald - Items 2 and 3 are met.  He has issues with items 1 and 4.  He doesn’t think the petitioner has met the criteria for 1 and 4.  It has only been vacant for a year and that is not extremely long.  It has been used before as retail space.

 

Holthof - He agrees with what Jack has said.  It has been a “swinging door” with one business after another in there.  He feels it would not be practical to use this for anything but living space.

 

Vote on the motion:

Higgins: yes

Sutton: yes

Lichtenwald:  no

Dunn: yes

Holthof:  yes

 

The dimensional variance to permit the expansion of a nonconforming dwelling unit addition was approved at 1815 S. Saginaw Road.

 

4.         PUBLIC COMMENTS

 

None

 

5.         OLD BUSINESS

 

None

 

6.         NEW BUSINESS

 

a)      City roundtables announcement

 

b)      New zoning ordinance adoption – On November 8, 2004, the City Council approved the new zoning ordinance.  It will take effect January 1, 2005.  The council will have some added authority regarding site plans and parking for businesses will be allowed in some residential districts, by special use permit.

 

c)      City board member training will be conducted by city staff in winter 2005.  In theory, this board could see a variance request on the new zoning ordinance at their January meeting.  The PC and ZBA will be meeting together on a Saturday in February, but not Valentine’s Day weekend.  The HDC will also be attending.  We have to get city staff trained first.  Before the January meeting you will get a bound, tabbed copy of the new ordinance.  They would also like 3-hole punched. 

 

Jack Higgins commented that he has a problem signing the decision sheets that are blank.  Jack would like to see a copy of the public record and have an opportunity to change it prior to it being recorded at the Register of Deeds.  This way, if there are any concerns, they can be corrected before the petitions are recorded.

 

7.         DECISION SHEET SIGNATURES

 

8.         ADJOURNMENT

 

            Meeting was adjourned at 8:59 p.m.

 

 

Respectfully Submitted,

 

 

Daryl Poprave

City Planner