MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, APRIL 19, 2005,

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

MIDLAND, MICHIGAN

 

1.         ROLL CALL.

PRESENT:  Board Members – Sutton, Green, Lichtenwald, Higgins, and Siemer

            ABSENT:    Board Members – Holthof and Dunn

            OTHERS PRESENT:            Daryl Poprave, City Planner; Cheri

Standfest, Community Development Specialist, and seven other people in the audience

 

2.         APPROVAL OF MINUTES.

 

It was moved by Sutton and supported by Green to approve the minutes of the January 18, 2005 meeting.  The motion was unanimously approved.

 

3.         PUBLIC HEARINGS.

 

The Vice-Chairman explains to those in attendance the ZBA’s public hearing rules of procedure, opens the first public hearing and then directs staff to introduce the first petition.

 

(a) Petition No. 05-02 – Speedway Gas Station for an area/dimension variance to permit the reconstruction of a fuel dispenser canopy at 1215 South Saginaw Road.

 

Staff introduces the petition and summarizes the staff report. 

 

DKP - The property is currently zoned RC Commercial.  It has been a part of the community for some time. The property is surrounded on all sides by RC Commercial.  There is some multi-family residential and a little bit of office in the general area.  If approved, this variance would allow a 24’ x 43’ gas station canopy to exist 10’ from the S. Saginaw Road right-of-way and 10’4” from the Washington Street right-of-way.  This is simply for the replacement of a previously existing canopy.

 

Sutton – The encroachment into the side yards is the same as the previous canopy?

 

DKP – Yes.  The petitioner said this canopy is exactly the same size as the previous canopy.

 

Staff ends the petition introduction and the Vice-Chairman invites the petitioner to speak on behalf of his application.

 

Brian Lance – 586 Broadway, Davisburg, MI.  The reasons we want to reinstall this canopy is for the safety and convenience of their customers.  It is imperative that we have this canopy in order to operate their facility with the competition down the road.

 

Green – Does the canopy really affect the property’s competitiveness? 

 

Mr. Lance – Yes, it helps to minimize the foul weather effects by offering protection to customers while refueling their vehicles.

 

Higgins – You (Petitioner) have submitted responses to our criteria.  Please address criteria #1 as to why this is either not reasonable or why this is unnecessarily burdensome.

 

Mr. Lance – There is not room there to make it fit and still be within the guidelines of the ordinance.

 

The Vice-Chairman asked if there was anyone present who wished to speak in favor of the request hearing none, the Vice-Chair asked if there was anyone in opposition to the request hearing none the Vice-Chair closed the public hearing and asked the Board to enter into findings of fact on this petition.

 

 

Findings of Fact:

05-02 – Area/Dimension Variance

 

1.      The property is zoned RC Regional Commercial.

2.      There were no communications received.

3.      The parcel is a pie shaped lot with frontage on Washington and S. Saginaw Road

4.      The original canopy had the same footprint as this request and was non-conforming due to its encroachment into the setbacks.

5.      The new canopy will not present a safety hazard for either pedestrians or vehicles site lines.

6.      The new canopy will provide customer protection from inclement weather conditions.

7.      It would not be possible to rebuild the property to fit the current zoning ordinance and it would be burdensome to re-design the site.

 

It was moved by Higgins and seconded by Siemer to approve the area/dimension petition 05-02 based on findings of fact.

 

Sutton - This is rather straight forward.  It would be unnecessarily burdensome to have to re-design the site to fit the new ordinance.  It is pretty common for gas stations to have canopies today to protect customers.  The Petitioner is not trying to enlarge the canopy; he is just replacing what was there.  This would not have a detrimental effect on the surrounding neighborhood.  There are two very busy main arteries that intersect here and this affects what can be placed on this site.  The setbacks for gas stations changed with the new ordinance.

 

Higgins - Agrees with Sutton on all issues.

 

Green - This gas station is in existence now.  How can the property not be used for a permitted purpose without the canopy?

 

Lichtenwald - Agrees with Sutton on all issues.

 

Vote in support of the motion:

Green:  No

Sutton:  Yes

Lichtenwald:  Yes

Higgins:  Yes

Siemer:  Yes

 

Petition 05-02 is approved by a 4-1 vote.

 

b)  Petition No. 05-03 – Janet Ringle-Bartels is seeking a use variance that would permit her to rebuild her residential dwelling located at 301 Townsend in the event that it is damaged or destroyed more than 50% by any means in the D-Downtown District.

 

The Vice-Chair opens the public hearing and directs staff to introduce the petition and summarize the staff report.

 

Staff introduces the petition and summarizes the staff report. 

 

DKP - This property is located on the corner of Townsend and Ellsworth Streets.  It is currently used for residential property.  The aerial photo shows the Gerstacker Commerce Center on the corner, east of it is Fire Station #2 of the Midland Fire Department.  Next to the property is another home, used by an appraisal service as their offices.  The zoning map shows this property is surrounded by commercial and office service.  There are, however, a lot of homes on these streets that are used for residential purposes.  This request has been brought forth due to a refinancing issue with a bank.  This is a common request by a bank to request a letter stating if the property were destroyed, it could be rebuilt.  This letter is required in order to get financing for the house.  This location was formerly in the Business B-2 zoning district.  This property has been part of the Downtown TIFA area since 1990 and is included in the Downtown Development Authority area.  This property has been zoned for commercial purposes since 1957.   This house was built in 1935 and was presumably zoned residential when it was built.  It has been used for multiple commercial purposes since 1977.  The property was bought by the current applicant in 1997 and, at that time, a part of the building was used for a commercial purpose.  At some point, the residence was converted back from a partially residential use to a full residential use.

 

This property is similar to the variance granted for individuals on 6511 Jefferson Street, what was annexed from Larkin Township.  However, each case is unique and has to be determined on its own merits.  This case was due to annexation and conflicts with the City’s Master Plan.

 

Higgins - If we grant this variance, the property could be used for either a commercial use or a residential use, and converted back and forth?

 

DKP - Yes.

 

Staff ends the petition introduction and the Vice-Chairman invites the petitioner to speak on behalf of his application.

 

Angela Hine of 5645 Bloomfield Court in Midland is representing the applicant in this appeal.  Janet Ringle-Bartels purchased the property from the owners of “I’ve Been Framed”.  It was used as commercial property (Children’s Therapy Corner) at first.  She used to live elsewhere.  Then she moved her business to the Eagle Ridge Industrial Park.  Four years ago, her property was changed by the city to 100% homestead.  This caused her to think she could refinance the house and use it as her residence.  She sold her other residence at this time.  Her current commercial mortgage balloons this summer, thus her entire mortgage will be due if she cannot refinance the home.  Because the property is no longer being used for a commercial purpose she cannot re-finance or extend this commercial loan balloon payment and because her property is a nonconforming residential use she cannot currently obtain a residential mortgage.  She needs a new roof on the property and must re-finance to proceed with this plan.

 

Higgins – I am having a lot of problems answering yes to 3 criteria.  Why can’t this property be used for commercial purposes?  What is unique about this property?  Why is this not self-created?

 

Ms. Hine - The property can be used for commercial purposes because – any property could be used for commercial.  She currently occupies this house as residential property.  A future owner could use this property for a business.  She could sell this property to another business.   Why couldn’t this variance go with the applicant and not the property?  Also, why couldn’t the uses permitted be restricted to only residential?

 

DKP - The only way to put these conditions on the property is to come back and ask to have the property rezoned.  This would be spot zoning, and not in accordance to the Master Plan.

 

DKP - There were no verbal or written communications received.

 

The Vice-Chairman asked if there was anyone present who wished to speak in favor of the request hearing none, the Vice-Chair asked if there was anyone in opposition to the request hearing none the Vice-Chair closed the public hearing.

Higgins – I would like to make a motion to table this case for not to exceed one month so staff can consult with the City Attorney.  The reason is part of the City government has told this petitioner she can live in this house as residential (specifically the Assessing Department).

 

DKP - Just because staff gives wrong information, does not invalidate the provisions of the Zoning Ordinance.  Staff is unaware of any permission being granted by the Planning Department with regards to this petition and the City Planner or Planning Director are the only people who can give the authority to change the use of a property. 

 

It was moved by Higgins and supported by Sutton to table Petition No. 05-03 until the May 2005 meeting so that the City Attorney may provide comment on the issues raised during this public hearing. 

 

Vote in support of tabling this petition:

Green:  Yes

Sutton:  Yes

Lichtenwald:  Yes

Higgins:  Yes

Siemer:  Yes

 

Petition No. 05-03 was tabled.

 

c) Petition No. 05-04 – Speedway Gas Station for a four area/dimension variance to permit the construction of a new gas station at 2500 North Saginaw Road.

 

The Vice-Chair opens the public hearing and directs staff to introduce the petition and summarize the staff report.

 

Staff introduces the petition and summarizes the staff report. 

 

DKP - For purposes of location, it is located on North Saginaw Road, across from Orchard Drive.  The current station is located between a restaurant and car dealership.  Currently, there is a rather small gas station and a very small convenience store.  The property is zoned Regional Commercial.  Behind this business (North side) are Natalie Court and a significant amount of residential property.  Speedway is seeking these variances to replace this very small out-dated gas station.  The new station would have a 3,000 sq. ft. footprint and include a convenience store.  The Zoning Ordinance mandates the automobile filling station buildings be set back 40 feet from all property lines.  The Petitioners are seeking a 32’ variance from the west property line, leaving an 8’ building setback.  They need an 8’ variance on the north property line, a 16’ variance on the southern property line, and a variance to allow a maneuvering lane within 10 feet of the north property line.  The Petitioner has worked diligently with the city examining other options.  The canopy does meet the setback requirements.  They have met the landscaping requirements on all sides of the property.  The access points already exist at the current station.  They need this variance in order to move forward with the Administrative Site Plan Review.

 

Staff ends the petition introduction and the Vice-Chairman invites the petitioner to speak on behalf of his application.

 

The Petitioners are Jason Bandy of 539 N. Main St, Findley Ohio and Gene Morrison – 539 S. Main St, Findley Ohio.  They are requesting for area/dimension variances today.  They showed pictures of the existing site and of the proposed development.  Currently, the structure is about 900 sq. ft.  It does meet the 40’ setback requirement on all sides.  The building is currently in disrepair so they would like to make some improvements to improve the site.  Constructing a building this size today is not feasible.  They rely on the sales of the convenience store to supplement their business.  Currently, their dumpster is not enclosed.  The new building would have an enclosed dumpster.

 

They showed pictures of a building in Ohio.  They don’t build the type of building shown much any more.  However, because of this lot’s size this type of store is proposed for this site.   The new building is a 3,000 sq. ft. building.  It consists of the 2-tone block brick and a smaller sign than currently exists.  They are meeting all the parking requirements on site. 

 

Mr. Bandy feels this will do substantial justice to the property owners in the area as this will improve the looks of the site.  They did attempt to maximize the distance between their building and the residential areas.  They have not addressed the issues of noise and fumes from the maneuvering lane to the north of the property.  This is the smallest building they can economically place on this site.

 

DKP - No communications have been received either in favor of or in opposition to this request.

 

Sutton – Asks the Petitioner to address how this maneuvering lane impacts the northern residential properties? 

 

Mr. Bandy – The landscaping and fence will help mitigate the effects of lighting, noise traffic, and fumes caused by this maneuvering lane being closer than required by the Ordinance.

 

Siemer – Asks the Petitioner if they have looked at other alternative with regards to site design such as having the fuel dispensing pumps on both sides of a centrally located building?

 

Mr. Morrison – They have considered this type of design but it greatly affects the site security.

 

The Vice-Chairman asked if there was anyone present who wished to speak in favor of the request hearing none, the Vice-Chair asked if there was anyone in opposition to the request hearing none the Vice-Chair closed the public hearing and asked the Board to enter into findings of fact on this petition.

 

Findings of Fact:

05-04 area/dimension variance

 

1.                  The property is zoned RC Regional Commercial.

2.                  Property abuts residential RA-4 to the north.

3.                  The site is to be re-developed with new construction with primary purpose of fuel dispensing.

4.                  Applicant plans dual use of filling station and convenience store.

5.                  The north side of the property has significant change in grading or topography.

6.                  No communications were received.

7.                  A setback of 10 feet is being requested, where 25 foot setback is required on the northern property line to accommodate fuel truck maneuvering.

8.                  The existing convenience store of 900 sq. ft. meets setbacks.

9.                  The existing canopy is legal nonconforming with regards to the setback requirements on the south property line.

10.              An additional 3 variances are requested as stated in the staff report.

 

DKP read the conditions of the variance which can be applied by the Zoning Board of Appeals to this petition to help mitigate negative impacts to surrounding properties due to this request. 

 

It was moved by Higgins to approve Petition 05-04 in accordance with the findings of fact, with one exception, that the southern property line setback be 25 feet.  This motion was supported by Siemer.

 

Higgins - We have a piece of property here that has two uses on it.  The Petitioner meets the requirements for the gas station without the convenience store, except for the maneuvering lane.  According to the Zoning Ordinance, the convenience store can be set on the property line.  Higgins feels they meet all the criteria because of the two uses on the property.

 

Sutton - She sees Higgins’ concern.  The fact that they want to put a dual use on that lot is in her opinion over-developing the site with an adverse impact on the neighbors to the north.  There is nothing unique about this property.  There is no substantial justice to the surrounding property owners and the property can be put to a permitted purpose.

 

Siemer - Agrees with the motion.  He thinks upgrading this facility will be a benefit to the City as compared to having something 40 years old sit there.

 

Green – Is surprise that no additional conditions have been placed within the motion to mitigate the adverse effects that this maneuvering lane could have on properties to the north. 

 

Lichtenwald - Agrees with Richard & Jack.  It will be an improvement to the site and he can meet all the criteria.

 

Vote in support of the motion:

Green:  Yes

Sutton:  No

Lichtenwald:  Yes

Higgins:  Yes

Siemer:  Yes

 

Petition 05-04 is approved by a 4 to 1 vote.

 

4.         PUBLIC COMMENTS.

 

None

 

5.        OLD BUSINESS.

 

      None

 

6.         NEW BUSINESS.   

 

Staff asks that the ZBA members send e-mail or written comments to staff regarding City Council’s Boards and Commissions Attendance Policy which has been in effect since July 2004.

 

7.         DECISION SHEET SIGNATURES

 

a)      05-01 – approval of findings of fact.

           

 

Having no further business, the Vice-Chair adjourns the meeting at 8:30 PM.

 

 

Respectfully submitted,

 

 

 

Daryl Poprave

City Planner