MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, SEPTEMBER 20, 2005,

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

MIDLAND, MICHIGAN

 

1.         ROLL CALL.

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

            ABSENT:    Board Members – None

            OTHERS PRESENT:            Daryl Poprave, City Planner; Cheri

Standfest, Community Development Specialist, and 7 others

2.         APPROVAL OF MINUTES.

 

It was moved by Higgins and supported by Holthof to approve the minutes of the August 16, 2005 meeting with minor corrections.   Motion was unanimously approved.

 

The Chairman asked the Board if Petition No. 05-15 (Tabled) could be moved to the front of the agenda because it was tabled at the August 16, 2005 meeting after its public hearing had been adjourned.  After a unanimous voice vote approved this agenda change, it was moved by Higgins and supported by Sutton that Petition No. 05-15 be removed from the table. 

 

This motion passed unanimously.

 

a)   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.

 

Mr. Poprave reviewed the details of this petition.  The board chose to table this request after the public hearing at the August meeting to get some additional information from the property owner.  The property is all zoned Regional Commercial.  It is bordered on the east by some residential, a church.  The remaining surrounding properties are all regional commercial.   There are spaces in Wal-Mart where Subway could place a sign if Wal-Mart would allow this.  Staff stated that Mandy Sayer of Wal-Mart e-mailed a response to the City and Mr. LaPoe that stated Wal-Mart would not surrender any of their approved signage to a tenant.

 

Richard LaPoe, 918 S. Saginaw Road, owner of the Subway store located in Wal-Mart stated that since the last meeting, he did contact Wal-Mart.  They did state that any signage awarded to Subway would be awarded to Subway.  If the Subway store should leave the store, the sign would come down.  They thought perhaps the Wal-Mart store should be treated the same as Midland Mall.  Every tenant in the Food Court contributes to a fund for advertising.  People know what is in the Food Court.  None of this is true with Wal-Mart.  Mr. LaPoe has rented a space and he is an independent tenant.  He feels he is very close to having his own door.  He thinks his situation is more closely related to Ruby Tuesday’s at the Midland Mall.  They have outdoor signage and they are not a part of the Food Court.  As we speak, he has no outdoor signage.  If you do not go to Wal-Mart, you do not even know his store is there.  He would be happy to have any kind of signage.  He thinks 20 sq. ft. is a reasonable request as Wal-Mart is so far back from Joe Mann Boulevard. 

 

 

Findings of Fact:

 

1.                  Property is zoned Regional Commercial.

2.                  Property is located in the Wal-Mart Super Center as a single use, with no separate exterior entrance from Wal-Mart.

3.                  Wal-Mart was granted a sign variance for 600 sq. ft. where 150 sq. ft. was allowed on September 21, 2004.

4.                  Wal-Mart authorized the petitioner to act as an agent for the Subway exterior sign permits on July 29, 2005.

5.                  An e-mail dated August 24, 2005 from Wal-Mart to the petitioner stated that part of Wal-Mart’s approved signage area will not be transferred to the petitioner.

6.                  An e-mail dated August 22, 2005 from Wal-Mart to the petitioner stated “should you be permitted for 20 sq. ft. of exterior signage at Wal-Mart #2619 in Midland, MI, it will be used for Subway only.  Should Subway vacate the building, Wal-Mart will not count the square footage as their own.”

7.                  The petitioner would be allowed a sign of 4 sq. ft. if the commercial use had an independent, exterior door.

8.                  Subway has no access to a ground sign.

9.                  Subway restaurant is over 600 feet from Joe Mann Boulevard.

10.              No communications were received either in support or in opposition.

 

Staff has stated that State law says we cannot grant the sign only to Subway.  Under Michigan State Law, the variance goes with the property.

 

It was moved by Higgins and supported by Holthof to approved Petition No. 05-15 based on the findings of fact. 

 

Holthof is concerned about the criterion #5 which states the problem and resulting need for the variance was created by strict compliance with the zoning ordinance, not by the applicant or the applicant’s predecessors.  He feels Wal-Mart asked for much more signage than was allowed and they were granted significantly in excess of what was allowed by the ordinance.

 

Higgins agreed with Holthof.  He feels bad for Mr. LaPoe, but Wal-Mart already has been given a significant amount of extra signage.

 

Green stated that that he does not think this Subway is an end destination for people coming to Wal-Mart.  They may be coming to Wal-Mart as an end destination, but not solely for a sandwich in the Wal-Mart.

 

Sutton agrees with all the comments.  She also thinks that this Subway is not an end destination.  People who come there probably already want to shop at Wal-Mart.  She finds great difficulty in allowing additional signage when such a significant amount has already been given.

 

Lichtenwald agrees with the remainder of the board.

 

Voting in support of the motion:

Green:  No 

Sutton:  No

Lichtenwald:  No

Holthof:  No

Higgins:  No

 

Petition No. 05-15 is unanimously denied.

 

3.         PUBLIC HEARINGS.

 

a)                  No. 05-16 – Lapham’s Flowers for an extension of a previously approved temporary permit at 1412 North Saginaw Road.

 

Mr. Poprave showed a location map for property located 1412 N. Saginaw Road.  This petition is for a re-issuance of a temporary permit.  Lapham’s is located between the Fast Eddie’s Car Wash and the Pizza Hut.  The aerial photograph shows the green space that is occupied by Lapham’s Flowers, adjacent to the car wash and along the east side of Hidden Pines Court.  It is zoned Regional Commercial which permits businesses like this so long as they provide enough parking, lighting, site drainage, etc.  Ordinance No. 727 allowed businesses to set up a temporary tent on property and to set up a temporary business at that location.  The Board stated they wanted to review this application on a yearly basis.  He is also looking to amend his permit and not expand the seasons of operation.  He would like to operate from May 1, 2006 thru July 15, 2006, and September 1, 2006 thru October 31, 2006.  With the passage of the new zoning ordinance, the Zoning Board of Appeals no longer has the authority to grant the temporary use permits.  Once this is no longer granted, the petitioner will be forced to find a more permanent location, with paved parking and indoor facilities.  The Board can continue to re-authorize it so long as it is a continuation. 

 

Michael Lapham, 2816 Scott Street – State that they are just asking for a continuation of what they received last year.  It will be identical to last year, except they no longer wish to be open for the Christmas season.  They would like to be open in the spring to sell spring flowers and in the fall to sell mums, etc.  They feel they have had no problems either with traffic or with parking.  They would like to keep the same hours of 9:00 a.m. to 9:00 p.m.  Their current location is ideally suited for their operation so they have not been actively seeking another location. 

 

The Chairman asked if there was anyone present who wished to speak in favor of this request, hearing none and seeing none the Chairman asked if there was in anyone present who wished to speak in opposition to this request. 

 

Hearing none and seeing none the Chairman closed the public hearing and directed the Board to enter into fact finding.

 

Findings of Fact:

 

1.                  Findings of Fact determined on November 16, 2004, item #1, #3, #5, #6, #7, #8, #9, #10, #11, and #12 remain as stated.

2.                  Findings of Fact determined November 16, 2004, item #2 is modified to say 5 letters in favor and one phone call in opposition.

3.                  #4 – the Petitioners desire two selling periods of May 1 – July 15th, and September 1 to October 31st.

4.                  Permanent no parking signs have been erected on the Hidden Pines drive by the petitioner.

 

It was moved by Mr. Higgins and supported by Sutton to approve the re-issuance of the temporary permit with the conditions the same as before with the following exceptions, based upon the findings of fact.  

 

Sutton moved to amend the original motion to modify criteria #6 of the conditions, to state that this permit will expire on October 31, 2006.  The amendment was supported by Higgins.

 

Vote on the Amendment:

Green:   Yes

Sutton:  Yes

Holthof:  No

Higgins:  No

Lichtenwald:  Yes

 

Motion on the expiration amendment passes 3-2

 

Holthof offered another amendment to the amended motion that this permit not expire until October 31, 2008.  The new amendment was supported by Sutton. 

 

Vote on this Amendment:

Green:  Yes

Holthof:  Yes

Higgins:  Yes

Sutton:  Yes

Lichtenwald:  Yes

 

The final amendment to Criteria #6 which creates an expiration date of October 31, 2008 passes 5-0.

 

Holthof moved to amend the fall hours of operation to be 9:00 a.m. to 8:00 p.m. and Higgins accepted this as a friendly amendment to his original motion to approve.

 

All the Board members stated they can approve this motion now that it has a time limitation on it.

 

Vote:

Lichtenwald:  Yes

Sutton:  Yes

Green:  Yes

Higgins:  Yes

Holthof:  Yes

 

Petition 05-16 was approved unanimously with the condition that this temporary permit will expire on October 31, 2008.

 

b)                                          No. 05-17 – Mark Kohtz or an area/dimension variance to permit a 6 foot tall privacy fence to exist in the side yard setback at 2507 Greenwich Circle.

 

Mr. Poprave states that this is a petition to allow a 6 foot privacy fence to exist in the side yard setback.  The location map shows the subject property is located north of Eastlawn Drive on Greenwich Circle.  It does back up to a rather large apartment complex.  This is a relatively new development as there have been a number of new homes built in this area.  The sidewalk curves on this site.  The property line does not follow the line of the sidewalk.  The property is located in RA-2.  It is located next to RB, which is multi-family zoning.  It is across the street from LCMR which is owned by Dow Chemical.  Right now this parcel is a vacant, wooded area. The property owner is requesting that he be able to retain the fence that he constructed in April of this year (2005).  The main rationale for this is to prevent pedestrians from cutting thru this yard. 

 

Mark Kohtz of 2507 Greenwich Circle stated that he has no problem removing a section where he made a mistake and move the fence back onto his side of the property line.  There is a lot of traffic from Dow that drives by his property.  There is also commercial property across the road from him.  If this property ever were to develop, there would be significant traffic across the street.  He went around to his neighbors and obtained six signatures from his neighbors, none of who objected to his fence.  It provides privacy for everyone on the street due to the height of the fence. 

Higgins asked the petitioner if knew how wide the gulley was on the south side of his property.  Mr. Kohtz responded that there is a 5’ wide gulley located approximately 15’ south of his house. This gulley has natural vegetation in it.

 

Green asked the Petitioner if his house was for sale.  The Petitioner stated that it was.

 

Lichtenwald asked the Petitioner if he had any small children.  The Petitioner stated that he had a 3 yr. old daughter.

 

The Chairman asked if there was anyone present who wished to speak in favor of this request:

 

Jeff Kohtz of 3206 N. Sturgeon Road stated that the thing to remember is that the apartment complex has a fence and there are a lot of children in there.  He thinks this fence is a nice addition and a nice continuation of this fence.

 

Next, the Chair asked if there was anyone present who wished to speak in opposition to this request, hearing none and seeing none the Chair closed the public hearing and directed the Board to enter into fact finding.

 

Findings of Fact:

 

  1. The property is zoned RA-2 Residential.
  2. There was a letter received with 6 signatures in support and one audience member spoke in support.
  3. The property is located on the northeast corner of Eastlawn and Greenwich Circle.
  4. The speed limit on Eastlawn Drive is 35 mph.
  5. The 6’ fence was constructed without a permit.
  6. The rear of the property is separated from Mulberry Tree Apartments by a 6-foot high fence.
  7. According to the property owner, there is an approximately 5-foot wide gulley located approximately 15’ from his house and a portion of the gulley is inside the fence.  The gully has natural vegetation growing in it.
  8. The property abuts a large apartment complex and there is a contiguous 6’ privacy fence located to the east along the sidewalk belonging to the apartment complex.

 

It was moved by Sutton and supported by Green to approve Petition 05-17 based on the findings of fact.

 

Based on the criteria, Holthof has a problem with #5, the problem and resulting need for the variance has been created by strict compliance with the zoning ordinance, not by the applicant or the applicant’s predecessors.  He can get by criteria #4 due to the 6-foot high fence next door at the apartment complex and the fact that the petitioner’s property is next to a more intensive residential use. He also feels the fence provides relief to the neighboring property owners as it does block some of the traffic and pedestrian noise.

 

Higgins feels that a 6-foot fence is reasonable in a back yard on a busy street.  However, City Council does not seem to agree so he cannot get by the first criteria.  He does not feel the apartment complex creates a unique circumstance that would allow him to get by criteria #4.

 

Sutton – We have a lot of busy streets in Midland.  There are 3-1/2 foot tall fences and people plant landscaping to make them more aesthetically pleasing.  She cannot get by any of the criteria.  There is nothing that would make this unnecessarily burdensome.

 

Green agrees with his fellow Board members.  The variance stays with the property and not with the property owner. 

 

Lichtenwald stated that he also agrees.  As you go west down Eastlawn, for the most part, you do not see many adjacent property owners erecting fencing at all. 

 

Voting in support of the motion:

Green:    No

Sutton:   No

Lichtenwald:  No   

Higgins:   No

Holthof:   No

 

Petition 05-17 was unanimously denied.

 

 c)        No. 05-18 – Fifth Third Bank for an area/dimension variance to permit four (4) signs on an ATM machine located at 6641 Cinema Drive.

 

Mr. Poprave explains that the site is located south of Joe Mann Blvd. and west of Cinema Drive and is also bounded on the south by Cinema Blvd.  The property is zoned RC – Regional Commercial which permits uses such as ATM’s by right.  This 5/3 ATM cabinet is presently an accessory use to the Quality Truck and Automotive Accessories business.  Table 8.2 of the Zoning Ordinance states that each building in the RC zone shall have no more than 1 sign with a maximum area of 150 square feet because 5/3 is asking for multiple signs they must seek a variance even though they are not asking for additional sign square footage. 

 

Staff also states that they are putting together a packet to bring to the Planning Commission and City Council starting in November to revise many sections of the Zoning Ordinance including the sign section. 

 

Tom Plummer of Clarksville, Michigan stated that he is a contract employee of 5/3 Bank.  They are looking at a total square footage of approximately 30 percent of the allowable amount equal to approximately 44.5 square feet of signage on the ATM cabinet and canopy.  John Wagner said they were allowed 150 sq. ft. of signage on the canopy and another 150 square feet on the ATM cabinet.

 

The Chairman asked if there was anyone present who wished to speak in favor of this request, hearing none and seeing none the Chairman asked if there was in anyone present who wished to speak in opposition to this request. 

 

Hearing none and seeing none the Chairman closed the public hearing and directed the Board to enter into fact finding. 

 

Mr. Poprave stated that no communications were received.

 

Findings of Fact:

  1.  The property is zoned RC.
  2. The ATM cabinet is a secondary use of the site and is located at the side of the property.
  3. The ATM is accessed by a dead-end street.
  4. The ATM is located on a site bounded by 3 roads – Cinema Drive, Joe Mann Boulevard and Cinema Boulevard.
  5. The aggregate signage will not exceed the 150 sq. ft.
  6. No communications were received in support or in opposition.
  7. Planning staff will be recommending changes to the Planning Commission and City Council concerning the whole sign section of the Zoning Ordinance.

 

It was moved by Higgins and supported by Sutton, to approve the Petition 05-18 for multiple signs, not to exceed 150 sq. ft. including the canopy, based upon the findings of fact. 

 

Higgins has no problems with this variance.  He did not have any problems with the petitioner meeting all of the criteria.

 

Sutton also has no problem.  She feels all the criteria are all adequately addressed by the findings of fact.

 

Green agrees with the other Board members.

 

Holthof cannot get by criteria #1.  Strict compliance will unreasonably prevent the property from being used for a permitted purpose.  This is not burdensome.  People know what these boxes are for.  He does not believe this would prevent them from using the property for a permitted purpose.  He feels that when the ordinance is changed this will take care of it.

 

Lichtenwald feels all of the criteria have been met.

 

Vote in support of the motion:

Green:    Yes

Sutton:   Yes

Lichtenwald:    Yes

Higgins:   Yes

Holthof:  No

 

Petition 05-18 is granted by a 4 to 1 vote.

 

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

 

None

 

5.  Old Business

 

None

 

6.                  New Business

 

Roy Green attended the MAP annual meeting in Mackinac Island.  He took the Citizen Planner Course and this was a great opportunity for continuing education. 

 

7.   Decision Sheet Signatures

 

a.       05-12 approval of findings of fact

b.      05-13 approval of findings of fact

c.       05-14 approval of findings of fact

d.      Copies of signed and recorded decision sheets from previous meeting

 

8.  Adjournment

 

The Chairman adjourned the meeting at 8:49 PM.

 

Respectfully submitted,

 

 

 

Daryl Poprave

City Planner