MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,
WHICH TOOK PLACE ON
AT , IN
PRESENT: Board Members – Higgins, Sutton, Green, Lichtenwald and Holthof (arrived 14 minutes late)
ABSENT: Board Members – None
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
3. PUBLIC HEARINGS.
– Speedway SuperAmerica for a non-use variance to permit an increase in the
amount of under canopy lighting and additional wall signage at
Poprave - showed a location map for property located 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
Variance No. 2 – Increase the allowable illumination at the
property line on the
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.
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.
The speed limit on
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.
The property is located at the intersection of
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:
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
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:
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:
Variance No. 4 and No. 5 are unanimously granted.
– Midland King’s Daughters Home for a non-use variance to permit a 32 square
foot ground sign to exist in RB – Residential at
Poprave - The location map shows the subject property is at
the corner of
David Koeplinger is the Director of King’s Daughters Home in
No one spoke in favor of or in opposition to this request.
Findings of Fact:
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
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:
Petition 05-13 is granted by a 4 to 1 vote.
– Dollar Daze Inc. for an administrative review to appeal City Council
screening and fencing contingencies approved as part of site plan No. 241 at
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
Poprave describes the following chronology and time line.
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
Mr. John Wildeboer of
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
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
Nancy Stark of
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
Two letters were received by the
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:
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 13th 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
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:
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
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
Richard LaPoe of
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:
Petition 05-15 was table until
4. Public Comments (not related to items on the agenda)
5. Old Business
6. New Business
a. 2006 Zoning Board of Appeals meeting schedule was presented by Poprave the meetings will still be held at 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:
7. Decision Sheet Signatures
The Chairman adjourned the meeting at