MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, AUGUST 16, 2005,

AT 5:30 P.M., IN COUNCIL CHAMBERS, CITY HALL,

MIDLAND, MICHIGAN

1. ROLL CALL.

PRESENT: Board Members – Higgins, Sutton, Green, Lichtenwald and Holthof (arrived 14 minutes late)

ABSENT: Board Members – None

OTHERS PRESENT: Daryl Poprave, City Planner; Cheri

Standfest, Community Development Specialist, Jon Lynch, Planning Director, Jim Branson, City Attorney and 23 other people in the audience

2. APPROVAL OF MINUTES.

Sutton stated that the following corrections needed to be made to the minutes:

Page 2, under FOF - #3 – it is “front entrances” #8 – it was “February, 2005”

Page 3 – top line – eliminate the word “made” Under item D, 141 sq. ft. sign, add “over the entrance”

Page 4 – “wall” is not needed. It is a pole mounted sign.

It was moved by Higgins and supported by Sutton to approve the minutes of the July 19, 2005 meeting the motion was unanimously approved.

3. PUBLIC HEARINGS.

a) No. 05-12 – Speedway SuperAmerica for a non-use variance to permit an increase in the amount of under canopy lighting and additional wall signage at 2500 North Saginaw Road.

Poprave - showed a location map for property located north of Saginaw Road and just west of Orchard Drive, just east of Christie Court. Next to it is a rather large shopping center. The hospital is located to the south. The property is currently zoned RC, which permits gas stations by right. Several set-back variances were granted at the April, 2005 meeting so they could develop a new gas station at this site. Staff then showed an aerial map, showing what the site looks like today. The new building will be placed at the southwest corner of the lot. The parking lot will extend further back to the north.

Poprave - Tonight’s petition includes five non-use variance requests. The first request is to increase the amount of foot candles of light under the canopy from 20 allowed, to 50. The petitioner also wants to decrease the lower edge of the sign and increase the height of the sign. Mr. Poprave introduces Variance 1 through 5 and informs the Board of related background material and ordinance citations as listed in Staff Report 05-12.

Variance No. 1 – Increase the intensity of lighting under the proposed service station canopy from 20 foot candles to 50 foot candles.

The applicant has listed comments from several resources, listing recommendations for foot candles for gas stations. They want the increased number of foot candles due to the increased amount of light around them. In the staff report, the board is provided the lighting levels of the other five Speedway gas stations in Midland. Prior to January 1, 2005, we did not have light restrictions in the ordinance. Mr. Poprave showed photos of these stations with their lighting on at night.

Variance No. 2 – Increase the allowable illumination at the property line on the N. Saginaw side.

Variance No. 3 – Decrease the under clearance of the ground sign from 8’ to 5’ 6” and increase the sign’s height from 20’ to 22’ 9”.

The applicant states the sign will not exceed 100 sq. ft. The sign proposed by the applicant is actually 135 sq. ft. The applicant did not measure the sign correctly according to the Zoning Ordinance provisions.

Variance No. 4 – Increase the amount of wall signs on the convenience store from one to two while keeping the same amount of signage required by Ordinance.

Variance No. 5 – Increase the amount of wall signs on the canopy from one to three while keeping the same amount of signage required by Ordinance.

Staff does not recommend that four of the five variances be granted. Staff recommends against #1, #2, #4 and #5. Staff recommends that variance #3 be approved. If the sign size does not go over 100 sq. ft., staff has no problem with it. McCardle’s Used Car lot was measured last night at 10 foot candles. On the new car sales of the lot, there were between 20 and 30 foot candles of light, but that light did not extend past the property line.

The petitioner revealed standards for foot candles in various situations. The current illumination levels, according to the Illumination Engineering Society of North America, are 50 foot candles for gas stations. The lamps are the brightest when the bulbs are first inserted. As they burn for a while, they lose a portion of their brightness. From a manufacturer’s standpoint, they do not recommend under 50 foot candles. Anything less would be a “poorly lighted” station. He feels this is needed for the safety of the community.

The other petitioner (engineer, Jason) stated he felt they needed 35 foot candles under the canopy. He stated there would be about 10 foot candles of light on the approaches. They will continue to meet the one foot candle illumination around the other boundaries of the site. He took readings last night, when McCardle’s was closed; his light readings were 50-60 foot candles with only half of their lights on.

The engineer (Jason) stated he was not aware that the sign was measured incorrectly. He stated they will meet the 100 sq. ft. limit of the overall sign. They are proposing two reader-board signs on the building. They would remove the one sign from the canopy to stay within the 150 sq. ft. limit, but they would like to have four signs instead of the one that is allowed by the ordinance. They would also like the board to consider a “wrap-around” sign as one sign. Mr. Poprave stated that since there are two faces to this sign, and it is on two sides, it is considered two signs. The board will have to consider this in their deliberations. The two signs on the building will be reader-board signs. The sign on the canopy is considered to be the most important.

The Chairman asked if there was anyone in the audience wishing to speak in favor of this request. Hearing none, the Chairman asked if there was anyone present wishing to speak in opposition to the request.

Ron Lowrey, 70 W. Center Street, Sanford, MI. He is the property owner just to the north of this site. He owns ½ of the property, a house, just to the north of this site, at 2515 Natalie St. At the back of the house, looking toward the gas station property, he currently sees his 6’ fence and the greenery growing around it. There is also a lot of greenery on their side of the fence. Their current building blocks much of the activity going on at this site. Their proposed plan removes the building and moves it to the west. The barrier protecting him now from the noise and light will be gone. They are going to put in a minimum of 3’ scotch pines. This will not provide any real protection for him from the noise and the light. He would like a privacy fence installed, as is on the property line behind McCardle’s.

Staff received a telephone call from Dick Miller, who owns the vacant lots behind this property. He objects to the additional lighting.

The public hearing is now closed.

Higgins proposed the following findings of fact for Petition 05-12.

Findings of Fact:

1. The property is zoned RC - Regional Commercial.

2. Two communications, both objecting to the lighting portion of the request.

3. The property abuts residential RA-4 to the north.

4. Applicant plans to dual use of the property as a filling station/convenience store.

5. Topographical changes to the site from south to north.

6. The speed limit on N. Saginaw Road is 45 mph.

7. The site plan for this project has been approved.

8. Petition 05-04 was approved in April 2005.

9. Most of the existing vegetation is on the property of the gas station, which will be removed when the site is redeveloped.

10. The property is located at the intersection of N. Saginaw Road and Orchard Drive, which has a traffic signal.

11. The City determined that the McArdle property is at 10 foot candles on the used car side and 20-30 foot candles on the new car side.

It was moved by Higgins, and supported by Green, to approve zoning petition 05-12, based on the findings of fact, in regard to the first two variance requests on the illumination only based on the conditions that the lighting under the canopy cannot exceed 28 foot candles, measured 5’ off the ground, and the illumination at the property line cannot exceed one foot candle except on the McArdle (east) side, where it may be five (5) foot candles at the remote refilling station, at the time of installation.

Higgins stated that it appears that the city provides adequate lighting at the entrances by the street lights in the rights-of-way. Jack felt this was the minimum necessary for what the petitioner wanted.

Sutton thinks none of the criteria can be justified. When the new Zoning Ordinance was written, it was prepared by experts who have knowledge in this area. The petitioner tonight stated several times that these were “recommendations”. He can use the property for the purpose intended. She is concerned about the neighborhood and the additional lighting that is requested. She also thinks it is self created. 50 foot candles are way beyond what the ordinance allows. She applies these comments to both requests for additional lighting.

Green is concerned about the criteria that says the variance would do substantial justice to the applicant and the adjacent property owner. He does not feel we would be doing justice to the surrounding property owners.

Holthof agrees with Higgins. He feels the one foot candle or less at the property lines would be sufficient to protect the surrounding property owners.

Lichtenwald agrees with Holthof and Higgins.

Voting in support of the motion on Variances No. 1 and No. 2:

Green: No

Sutton: No

Lichtenwald: Yes

Higgins: Yes

Holthof: Yes

Variances No.1 and No. 2 are granted by a vote of 3-2.

It was moved by Higgins and supported by Holthof, to approve variance No. 3, based upon the findings of fact.

Higgins has a problem with this one. He sees no reason why they need the 5-1/2 foot clearance. He does not think it would be burdensome for Speedway to meet the ordinance.

Sutton agrees with Higgins on all the criteria.

Green feels the Ordinance is in place so there is consistency and he feels the sign should meet the requirements of the ordinance.

Holthof agrees with Higgins.

Lichtenwald agrees with the remainder of the board.

Voting in support of Variance No. 3:

Green: No

Sutton: No

Lichtenwald: No

Higgins: No

Holthof: No

Variance No. 3 has been unanimously denied.

It was moved by Higgins and supported by Sutton to allow variances No. 4 and No. 5, to allow up to four wall signs total on the property, not to exceed 150 sq. ft. of signage based on the findings of fact.

Higgins thinks that so long as they meet the 150 sq. ft. requirement, the total number of signs should not matter.

Sutton cannot see how he cannot use his property for a permitted purpose without the increased number of signs.

Voting in support of Variances No. 4 and No. 5:

Green: Yes

Sutton: Yes

Lichtenwald: Yes

Higgins: Yes

Holthof: Yes

Variance No. 4 and No. 5 are unanimously granted.

a) No. 05-13 – Midland King’s Daughters Home for a non-use variance to permit a 32 square foot ground sign to exist in RB – Residential at 2410 Rodd Street.

Poprave - The location map shows the subject property is at the corner of Rodd Street and Nelson Street. It is adjacent to the Central Park and the old ice arena. It is surrounded by RA-4 Residential and community zoning. The aerial photo shows the current site. It is an assisted living center. The petitioner would like to have a 32 sq. ft. sign that is between Rodd and Nelson, on the corner out of the clear vision area. Staff recommends approval of this variance request. The 5’ height requirement will still be intact. This site is located in a residential neighborhood, but within this block, the other uses do have larger signs. The petitioner has offered to remove the secondary signage off Nelson Street if this variance is granted. No communications were received by the Planning Department regarding this variance.

David Koeplinger is the Director of King’s Daughters Home in Midland. Their Board of Directors has decided to apply for this variance due to the increased competition in the field of assisted living homes. The sign will be on an angle on the corner of Rodd and Nelson Streets. Mr. Koeplinger stated they are willing to remove the Thrift Shop sign located on Nelson St.

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

Findings of Fact:

1. The property is zoned RB Residential.
2. The property is located on the corner of Rodd St. & Nelson Street.
3. The front or main entrance of the building faces Rodd Street.
4. The speed limit on Nelson Street is 25 mph and the speed limit on Rodd St. is 30 mph.
5. The lot is 300 ft. long on Nelson and 490 ft. on Rodd St.
6. The petitioner is requesting one sign to be located at an angle on the corner of the property but not in the clear vision area.
7. The petitioner agrees to remove existing secondary sign that advertises the Thrift Shop.
8. The property abuts Central Park and the Community Center.
9. There are RA-4 single family homes across the street on Nelson and Rodd Streets.
10. No communications have been received.

It was moved by Sutton, supported by Green to approve Petition 05-13 based on the findings of fact.

Higgins would like to amend the motion by adding a condition that the sign shall not exceed 18 sq. ft. Amendment fails due to lack of a second.

Higgins does not see that they cannot use this property without the sign. It does substantial justice to the property owner, but not to the surrounding neighborhood. He feels an 18 sq. ft. sign is adequate.

Holthof feels there is a unique circumstance, in the Rodd Street is a one-way street. You need to be able to see that sign soon enough in order to react to the sign as it is on a one-way street. It is going to be a ground sign that will not protrude up into the air. He feels this is the minimum that is needed for people to react to the sign.

Green stated that this is a large area. A small sign will look out of proportion on this large lot. He can support this request.

Sutton agrees that this property is unique due to the one-way street and the size of this property. It must be placed 20 feet back off the road, out of the clear vision area.

Lichtenwald agrees with Holthof and Sutton.

Voting in support of the motion:

Green: Yes

Sutton: Yes

Lichtenwald: Yes

Higgins: No

Holthof: Yes

Petition 05-13 is granted by a 4 to 1 vote.

b) No. 05-14 – Dollar Daze Inc. for an administrative review to appeal City Council screening and fencing contingencies approved as part of site plan No. 241 at 1828 North Saginaw Road.

Poprave - This is an administrative review sought by Dollar Daze, Inc, to set aside Midland City Council’s contingencies to Site Plan No. 241 which was approved in June 2004. The property is adjacent to properties on Highridge Court and Sylvan Lane, off Eastman Avenue. It is tucked back in, with no frontage on either Saginaw Road or Eastman Avenue. It is zoned RC, Regional Commercial. It is adjacent to RA-1 on the west and the north. It borders RC to the east and the south. The west side of the property is what we are talking about tonight. It used to be a vacant lot located behind the strip center out on Saginaw Road.

Poprave describes the following chronology and time line.

Time Line:

On June 8, 2004, the Planning Commission conducted a public hearing for a retail store. At this time, the Planning Commission heard testimony from neighbors regarding the impact this store may have on their neighborhood. Criteria stated on June 28, 2004 by the Midland City Council include:

1. Storm water retention plans are reviewed and approved by the City of Midland Engineering Dept.
2. Access rights to and from the subject parcel are clearly delineated.
3. Illumination is not cast off site.
4. A 6’ tall chain link fence with black vinyl coating with 1.5” mesh will be constructed along the north and west property lines.
5. Retention of the approximately 55’ wooded buffer along the north property line.
6. Planting of evergreen trees in a staggered pattern on 7.5’ centers with 10’ separating the alternating rows of trees along the west property line.

At the Sept. 13, 2004 meeting, City Council reduced the amount of screening required on the north property line. Dollar Daze was permitted to remove the existing vegetation on the west side to plant the required trees.

On March 18, 2005, a temporary Certificate of Occupancy was issued by the Building Department. The city got a letter of credit from Chemical Bank to ensure the fencing and screening would be installed at a later date. This letter of credit expired July 18, 2005. It has been extended to expire July 18, 2006. This site plan was approved under the old zoning ordinance (Ord. No. 727). On May 2, 2005, Dollar Daze made application to the Zoning Board of Appeals. She received a letter from the City Planner stating she had not filed in a timely manner. He offered suggestions regarding the installation of the screening materials.

One issue is the timeliness of the appeal. The other is the issue of whether or not City Council has the authority to increase the amount of screening required. The City Attorney has waived the issue regarding whether or not the issue was raised in a “timely” manner. We will just focus tonight on the issue of whether or not City Council had the authority to impose additional screening for the site plan.

Jim Branson, City Attorney, spoke on behalf of the City Council. The issue being appealed is the issue of screening. Section 29-12 of the former zoning ordinance was in effect at the time of the approval of this site plan. It is the entire time of the year that there must be 75 percent obscuration. That does not mean at the peak of the growing season. The City Council, under 24(b), the City Council shall approve, approve with modifications, or disapprove the application for site plan. The only requirements before the ZBA are #4 and #6 of the requirements of the City Council in their resolution regarding this site plan dated June 28, 2004.

On September 13, 2004, the City Council did revisit these requirements, and only #4 and #6 of the modifications. This was after public comment, after the petitioner had an opportunity to speak, and after deliberations. Along the west property line, the fence was needed for security issues.

On March 7, 2005, the petitioner again requested that this issue be revisited. City Council reaffirmed not one, not two, but three times that this screening is required to protect the surrounding neighborhood.

Mr. John Wildeboer of 3741 Midland Road, Bay City, Michigan spoke on behalf of Dollar Daze Incorporated. What Mr. Branson said was accurate. The appeal is going to be dismissed and we are now appealing it to the Zoning Board of Appeals. It is our position that the naturally existing vegetation totally complies with the requirement of a totally obscuring screen. The definition in the old zoning ordinance talks about an obscuring screen. The definition from the old zoning ordinance was read. He feels this is what can be required under the old ordinance. It is their position that the existing vegetation does provide this obscuring screen.

Section 29.12 talks about screening between two zoning districts. It provides for one of three options, one is a wall, one is a fence, and the third is a combination of a fence and vegetation to provide the obscuration screening. Section 25 states it is for Review, Approval, and Appeals Procedures. It is not a guideline for the City Council to add additional screening. Section 25 also states “the site plan SHALL be approved unless written findings are made with regard to the propose project.” There are no written findings. It just says that there shall be a fence there and evergreen trees that shall be staggered. There must be some written findings from City Council that state that the proper screening is not provided. There were no findings either by the Planning Commission or by City Council that the existing screening does not meet the requirement. Mr. Wildeboer showed photos taken April 25, 2005. The petitioner feels what is there now is better screening than an artificial planting and fence. This is a natural area of 20 ft. plus high trees.

There is no security screening requirement in the zoning ordinance. A chain link fence does not obscure anything. You can see right through it. It makes no sense to require a chain link fence for obscuration screening. If it is truly for security reasons, where is the authority in the zoning ordinance for the City Council to require security screening? The concern is does the site plan, preserving the existing vegetation, meet the ordinance requirements?

No one spoke in favor of this request.

Kathy Kirby of 1807 Sylvan Lane stated that in the winter time, she has a full view of the building. She provided photos that show perhaps some of the trees are starting to die. If some o these trees are starting to die, this is a problem.

Nancy Stark of 1801 Sylvan Lane stated that only one person did not want the screening and the fence on his property. The City Council did a fantastic job in reviewing this site. You get a different perspective looking from the residential properties to Dollar Daze than you get looking at the residential property from the commercial property. The retention basin is a very good thing, as her back yard has been flooded 12 times in the spring. Now the water runs off toward the north as the Dollar Daze property is lower than the surrounding properties.

Kirk Bortel of 5102 Highridge Court stated that the issue boils down to whether or not the City Council had the authority to require the additional screening. The issues of the neighbors all along have been security and privacy. They are still the issue today. There is an 11’ high solid block fence behind Glen’s Market. Fast Eddie’s Car Wash was required to put an 8’ fence, a berm and trees between them and the condos behind. These are not even single family homes, they are condos.

Jim Strouthers of 5007 Highridge Ct stated that he has lived here since 1964. This is the 4^th time he has been here since then, with the intention of determining what is required to properly separate business and residential properties. When he moved in, there was nothing out there of a commercial nature. People would wander around from the commercial area to the residential area.

Two letters were received by the Planning Department in opposition to their request and one letter was received in support of this request.

Mr. Wildeboer spoke in rebuttal. Different people have provided different photographs from different times of the year. The staff report to the planning commission discussed the screening issue. Staff’s recommendation states they feel approval of the site plan is warranted with the following contingencies. None of the contingencies have to do with the screening requirements.

Jim Branson reviewed the definition of landscaping from the old ordinance, which includes fences. Landscaping and screening are both mentioned in the ordinance as conditions for approval, modification, or disapproval.

Chairman Lichtenwald emphasized that the role of the ZBA here is to determine if the City Council had the authority to place contingencies on the site plan or not.

Findings of Fact:

1. The Planning Commission had two motions regarding this site plan. The first one failed. The second one recommended requiring a 6’ opaque fence.
2. The findings of fact are in the chronology of the City Planner’s staff report 05-14 and these findings have been agreed to by both attorneys.
3. The letter of credit has been extended until July 18, 2006.
4. No screening or landscaping or fencing required by City Council as part of Site Plan No. 241’s approval has been installed as of this date.
5. We are dealing with the previous zoning ordinance, No. 727.

It was moved by Higgins, supported by Sutton, to grant the request by the applicant for an Administrative Review to set aside the landscaping and screening requirements, according to the September 13^th City Council requirements, based upon the findings of fact. It was specified that a “yes” vote was in support of the petitioner and a “no” vote is to support the City Council.

Higgins feels the zoning ordinance did give City Council the authority to modify the requirements. He is disappointed that the City Council and the Planning Commission do not state their findings of facts in their minutes to support their positions.

Holthof stated he does not disagree. However, the zoning ordinance is clear about having to produce written findings and he does not see any written findings. There are no findings in the minutes or anywhere that there are indeed written findings. He also cannot see anywhere in the Ordinance that the City Council is allowed to provide for additional security.

Sutton agrees with Higgins. Some of the neighbors stated they thought this was all accepted by both the city and the petitioner. Once the site plan was approved, the neighbors thought this was a “done deal”. They figured the site plan would be developed according to the approved plan. She feels the intent has been fulfilled by the City Council.

Green also feels the intent was there by City Council to protect the surrounding neighborhood and that they had the authority to add the contingencies to the site plan approval.

Lichtenwald also feels that City Council had the authority to set these boundaries on the site plan.

Higgins stated again that he would like to see more detail in the minutes regarding intent and reasoning for actions that are made.

Sutton moved to amend the motion to require the petitioner to leave the very tall trees on the west side of the property in place. The amendment failed for lack of support.

Voting in support of the administrative review for Petition 05-14:

Green: No

Sutton: No

Lichtenwald: No

Higgins: No

Holthof: Yes

The administrative review was denied by a 1 to 4 vote.

d) Petition No. 05-15 – Richard Lapoe on behalf of Subway Inc. for a non-use variance to permit additional signage on the Wal-Mart Super Center at 910 Joe Mann Blvd.

Poprave began by showing a location map for the Wal-Mart Super Store. This area is all Regional Commercial. The aerial photo shows the Wal-Mart store prior to the addition, and prior to Home Depot being built to the north. The Subway is just to the left inside the door to the food center. The main entrance is to the right of the food center. The Wal-Mart Super Center was granted 600 sq. ft. of signage and they did not act in 180 days so they had to reapply. The second time, Wal-Mart was also granted 600 sq. ft. of signage. There are multiple signs on the building at the present time. Now, the applicant has signed a lease with them and he states that they told him he could have signage on the building. Staff recommended approval on this. The unique factors are that he does not have access to the major signage of Wal-Mart. This has to do with a property owner and lessee. This is a massive building located quite a ways from Joe Mann Blvd. The petitioner is already open in Wal-Mart without the sign.

Richard LaPoe of 983 S. Saginaw Road. Mr. LaPoe stated he is acting as the agent of Wal-Mart in asking for the additional signage. The Zoning Board of Appeals suggested he go back to Wal-Mart and ask them to take down some of their signage and allow him to have his 20 sq. ft. of signage. It is in his contract with Wal-Mart. If the Zoning Board would give Mr. LaPoe the signage, the square footage of the sign would go to Wal-Mart as additional signage as the variance goes with the property.

No communications were received and no one spoke either in favor of or in opposition to this request.

It was moved by Higgins, supported by Sutton, to table zoning petition 05-15 until the next meeting to allow the petitioner to check with Wal-Mart about the signage.

Voting in support of tabling Petition 05-15:

Green: Yes

Sutton: Yes

Lichtenwald: Yes

Higgins: Yes

Holthof: Yes

Petition 05-15 was table until September 20, 2005.

4. Public Comments (not related to items on the agenda)

None

5. Old Business

None

6. New Business

a. 2006 Zoning Board of Appeals meeting schedule was presented by Poprave the meetings will still be held at 6:30 PM on the third Tuesday of each month.

It was moved by Sutton, supported by Holthof, to approve the meeting

schedule for 2006.

Voting in support of the motion:

Higgins: No

Holthof: Yes

Lichtenwald: Yes

Sutton: Yes

Green: Yes

7. Decision Sheet Signatures

1. 05-05 approval of findings of fact
2. 05-10 approval of findings of fact
3. 05-11 approval of findings of fact
4. Copies of signed and recorded decision sheets from previous meeting

8. Adjournment

The Chairman adjourned the meeting at 10:38 p.m.

Respectfully submitted,

Daryl Poprave

City Planner