MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, JUNE 20, 2006,

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

MIDLAND, MICHIGAN

 

1.      ROLL CALL.

PRESENT:           Board Members -      Sutton, Siemer, Higgins, Holthof and                                                                       Green

ABSENT:             Board Members -      Lichtenwald

OTHERS PRESENT:      Daryl Poprave, City Planner; Cheri Standfest,                                                               Community Development Specialist, and 10 others.

 

2.      APPROVAL OF MINUTES

It was moved by Higgins supported by Siemer to approve the minutes of the May 16, 2006 meeting as corrected.  Motion was unanimously approved.

 

Next, Vice-Chairman Green explained the public hearing procedures that the ZBA would employ to reach a decision on the following variances:

       

3.      PUBLIC HEARING

 

      a.  No. 06-06 – James Zablocki of Zablocki Construction on behalf of Stanley Smith for

an area/dimension variance to allow a three-season porch to be constructed within the 30 foot rear yard setback at 1812 Lawrence Drive.

 

This property is located off of Lawrence Drive, which is a private drive, in a heavily wooded area.  The property is zoned RA-1 and surrounded by RA-1.  The variance is to build a 180 sq. ft. addition.  The petition is asking that this addition be set back 14 feet from the property line.  It is an odd-shaped lot.  The current house is a legal-nonconforming use.  The house was built in 1974.  The current setbacks went into effect in Midland in 1966.  The house was sited on the side and front yards but not the rear yard on the original building permit.  Currently, the house sits within 22 feet of the property line.  It is already a non-conforming structure. 

 

Mr. Poprave showed pictures of the existing house.  Construction of this addition was started without a building permit.  Work was stopped on the permit once the petitioner found out there was a problem. 

 

Higgins asked how far back does the house behind it sit. 

 

Siemer stated it is about the same distance – about 20 feet.  Lawrence Drive is a private drive.  The house is setback 30 feet from the 40 foot easement for Lawrence Drive. 

 

James Zablocki of 2304 Judith Court stated that when they started this project, they already cut the concrete out and dug the footings.  When their secretary called the building department for a permit, this is when they learned about the setback encroachment.  They went ahead and put the footings in and poured the concrete as they did not want to leave the homeowner with a mess.  That area was a concrete patio prior to their digging.

 

Higgins asked the petitioner to address the five criteria, especially the first one.  The petitioner stated they do a lot of gardening in the back and the homeowners wanted space where they could go to get a breeze and enjoy their back yard.  The homeowners have lived there for quite a while.  Higgins asked what justice this variance will do for the neighbor in the rear.  The petitioner stated it is unlikely the neighbor to the rear will even be able to see the addition over the privacy fence.  Higgins asked the petitioner to address the last of the criteria, regarding the need for the variance being created by strict compliance with the zoning ordinance.  Since these people have been living in this house for quite a while, it would seem like the property can be used for a permitted purpose without this addition.  The petitioner stated the people want to be able to get out and enjoy their back yard. 

 

Sutton stated that the variance goes with the property and these people have been living in this house for some years and it is already a large house.  If this house were demolished for some reason, it could be rebuilt with this same footprint.  The house already encroaches eight (8) feet into the rear yard setback.  Holthof asked how far the roof line currently extends.  The petitioner stated it comes out approximately the same distance as the variance request.  Holthof asked what the current depth of this home is.  The petitioner stated it is 26-28 feet.  If this home had to be replaced, they could only build a house that was 12 foot deep and meet the required setbacks. 

 

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

 

Higgins stated he worked for several years with both the owners of this house, however this will not affect his objectivity on this case.

 

Hearing no further comments the Vice-Chairman closed the public hearing and directed the Board to enter into fact finding.

 

Findings of Fact:

1.                  Zoned RA-1, Residential.

2.                  The house was built in 1974 with a building permit on an unplatted (metes and bounds) lot.

3.                  The house is constructed 8 feet within the required 30-foot rear yard setback.

4.                  The house is a legal non-conforming structure because of the issuance of a building permit.

5.                  The petitioner desires to construct an 18-foot long by 10-feet wide addition that will result in a total encroachment of 16 feet into the rear yard setback.

6.                  The lot has 215.65 feet of frontage along Lawrence Drive with three curb cuts to accommodate two driveways.

7.                  The lot shape is a slightly modified “L”, irregularly shaped, as depicted in the drawing by the applicant’s plot plan.

8.                  The house is situated in the northeast corner of the lot.

9.                  The lot is approximately 30,280 sq. ft. in total area.

10.              The lot contains one accessory structure of 180 sq. ft.

11.              The property was a split-off from the property to the west in 1988.

12.              The lot is 125 feet deep where the house is currently located.

13.              Lawrence Drive is a private, dead-end road.

14.              The petitioner stated the house had fixed windows at the rear of the house.

15.              The “thunderbird” style roof projects toward the rear the same distance as the proposed addition.

16.              There is a 40 foot easement in the front yard, inclusive of the 125 feet lot depth and thus there is only 70 feet of usable lot depth.

17.              No communications were received by the Planning Department.

 

It is moved by Higgins and supported by Sutton to approve Petition No. 06-06 based on the findings of fact, provided that the addition does not encroach into the rear yard setback any further than the existing “thunderbird” style roof line.

 

Sutton stated she still has a problem enlarging the non-conformity.  She cannot see how the first criteria is met.  She still does not like encroaching so much into the rear yard that it disturbs the neighbor to the rear.  She thinks the problem is created by meeting the needs of the Zoning Ordinance.  However, these people and others have lived there for a number of years without needing this addition to enjoy the property.

 

Siemer stated that the addition will improve the homes value.

 

Holthof stated he can get by the first criteria.  Had the setback been caught when the house was originally built, it might not be non-conforming today.  However, he does have trouble getting by criteria B.  He feels it may increase the value of the petitioner’s property; however, it may not do justice to the property to the rear.  It is a unique property for many of the reasons already stated. 

 

Higgins stated he is having the same problems as Holthof.  It is going to be 30-35 feet from the house behind it.  Not the 60 feet the Zoning Ordinance calls for.  He is really having trouble seeing justice to the other property owners.  The petitioner stated they needed to have air into the house.  Why can’t they just add windows to the back of the house?  He is having a lot of problems getting by the criteria.

 

Green stated he is also having trouble getting by the distance between the two houses in the rear.  However, the plane of the rear of the house will not increase as the room will only extend out as far as the existing roof line. 

 

 

Voting in support of the motion:

Higgins:   No

Holthof:  No

Green:  Yes

Sutton:  No

Siemer:  Yes

 

The motion to approve Petition 06-06 was denied 2-3.

 

b.  No. 06-07 – Kevin McParlan, on behalf of Sabourin’s Pharmacy, for an area/dimension variance to permit a 28 square foot wall sign on the Midland Foodland located at 1315 Washington Street.

 

Mr. Poprave showed a location map indicating the Midland Towne Center Shopping Mall.  It is located on the west of Washington and north of East Patrick, or Business 10.  It is zoned Regional Commercial.  It is bordered by some Office Service off Bayliss Street and there is a linear park which is zoned commercial to the south of the one way pairs.  It currently houses the Midland Foodland Center.  The petitioner is seeking a 28 sq. ft. sign in addition to the 294 sq. ft. existing wall sign.  This is a large L-shaped strip center.  In 2005, when this business went in, the requirement was for 150 sq. ft. of signage.  Under the ordinance then, they could have an additional 150 sq. ft. of signage.  Under the new Zoning Ordinance, it would only be allowed 150 sq. ft. plus an additional 4 sq. ft. of each business occupying that business, up to an additional 32 sq. ft.  The petitioner is asking for an additional 28 sq. ft.  They are a sub-tenant of Midland Food Center, which is a sub-leaser of A&P.  Mr. Poprave showed a picture of the proposed sign.  There is a vacant space on the pylon sign, but the property owner stated it is being reserved for another tenant. 

 

No communications were received either in favor of or in opposition to this request.

 

Kevin McParlan of Kawkawlin, Michigan is the petitioner.  Green asked the petitioner to review the criteria.  The petitioner stated they do have a business and it is important for customers to know they are there.  Sutton asked if they had considered a window sign.  The petitioner stated that unless you drive right by, a car would not see a window sign.  Lori Beam Lander of 3208 Beech St, Midland stated she feels it would be confusing for people coming into the Foodland for them to just have a “Pharmacy” sign.  They would think the hours are the same as the Foodland store.  Higgins asked what the minimum they could live with.  They agreed that they could get along with about 15 sq. ft.  The petitioner has not discussed obtaining some of the footage of the sign from the Midland Foodland.

 

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

 

Hearing no further comments, the Vice-Chairman closed the public hearing and directed the Board to enter into fact finding.

 

Findings of Fact:

 

  1. The property is located in Regional Commercial.
  2. The sign is for a pharmacy (which is a sub-leaser to Foodland) located inside Midland Foodland Store.
  3. Midland Foodland sign currently complies with the 2006 ordinance and is actually 6 sq. ft. less than allowed.
  4. The Ordinance allows a sub-tenant to have an additional 4 sq. ft. sign per footnote “d”.
  5. The business is located in an outside shopping-type mall.
  6. The petitioner would not be permitted signage on the pylon sign according to the mall owner.
  7. The petitioner is permitted signage on the windows.
  8. There were no communications received.
  9. The town center is bound by East Patrick Road and Washington Street.
  10. The strip mall is divided into four separate buildings for purposes of sign area allotment.
  11. The petitioner’s conversation with the Foodland tenant is that they cannot afford to change their existing sign.
  12. The roof line of the structure makes readability of window signs difficult.
  13. The windows mainly are used for the Foodland weekly sales specials thus limited readability of other signs.

 

It is moved by Higgins and supported by Siemer to approve Petition No. 06-07 based on the findings of fact, subject to the wall sign being not more than 18 square feet in size.

 

Higgins thinks that criteria “a” is met.  He thinks it is unnecessarily burdensome for them not to be able to advertise outside the store.  They are only talking about 8 sq. ft. above the allowed signage.  He feels it does substantial justice to the applicant.  It is due to unique circumstances due to them being located in another store.  He feels strict compliance is not caused by the petitioner, but by the larger tenant.  They need a sign because they are sitting back so far.

 

Holthof agreed with Higgins.  Strict compliance would be burdensome to this small business.  The property owner is not making a pylon sign available to them.

 

Sutton and Siemer agree with Holthof and Higgins.  Green stated they had this situation with another building in town which was similar to this.  However, this is a decent compromise.  In the other case, the larger building had significantly more signage than allowed and they would not allow any additional signage for the sub-tenant.

 

Voting support of the motion:

Higgins:  Yes

Holthof:  Yes

Green:  Yes

Sutton:  Yes

Siemer:  Yes

 

The motion to approve Petition 06-07 was approved 5-0.

 

c.       No. 06-08 – Tom Pomerville, on behalf of Lucy’s Lunches & Catering of 413 Burgess Street, for a use variance to permit a 6 square foot off-premise ground sign at 1808 Bay City Road.

 

Mr. Poprave stated this is a use variance being requested.  This property is located south of Bay City Road, off of Burgess Street.  This is a gravel, unpaved road.  It is a pretty heavily used industrial area.  The sign will be positioned in the northeast corner of the property.  It is located in the RC commercial district.  It is bound by Industrial A to the south, east and west and Industrial B to the west.  There are a number of industrial type businesses in the area.  Bierlein Excavation and Corrosion Fluid are located here, and there are some residential properties located in this vicinity.  As this is a use variance, it takes four of the five votes for approval.

 

Several communications were received from area businesses, including the owner of the building in support of the petitioner. 

 

John Wood and Tom Pomerville, of Ashby Road, Midland are the petitioner for this request.  They stated that Burgess Street is a dead end street.  There are no other major streets that run by this location.  They are trying to build a business there.  It needs signage. 

 

Sam Shaheen, Saginaw.  He owns the lot on the corner.  He is in support of this variance.  No one spoke in opposition to this request.

 

Hearing no further comments the Vice-Chairman closed the public hearing and directed the Board to enter into fact finding.

 

Findings of Fact:

 

  1. The property is zoned RC – Regional Commercial.
  2. There were two letters in support and one person spoke in favor of this use variance.
  3. The petitioner has property on Burgess Street with no commercial exposure to a major thoroughfare.
  4. Burgess is an unpaved gravel road and it is desolate.
  5. The speed limit on Bay City Road is 40 mph and it is one-way east.
  6. The petitioner has permission from a property owner on Bay City Road to erect an off-premise sign in this area.
  7. The petitioner desires to erect a 6 sq. ft. off-premise ground sign which would not adversely affect traffic or visibility.
  8. Most of the surrounding properties are used for heavy commercial or industrial purposes.
  9. Most of the existing residential uses in the surrounding area are non-conforming.
  10. The petitioner’s business location is not visible from Bay City Road or other major thoroughfares.
  11. A ground sign at 413 Burgess would not be visible from Bay City Road.

 

It is moved by Sutton and supported by Holthof to approve Petition No. 06-08 based on the findings of fact.

 

Holthof feels this is really a unique circumstance.  Most properties are not isolated from any major traffic.  Sutton stated if this variance were not granted, it would adversely affect the viability of this business.  She has no problem meeting all four of the criteria.  Higgins, Holthof and Siemer agreed, as did Green.

 

Voting support of the motion:

Higgins:  Yes

Holthof:  Yes

Green:  Yes

Sutton:  Yes

Siemer:  Yes

 

The motion to approve Petition 06-08 was approved 5-0.

 

d.   No. 06-09 – Bill Waterman requested several area/dimension variances to permit a nonconforming single family home to be converted into a triplex (three-unit) structure at 614 George Street.

 

      Mr. Poprave showed a map of the subject property which is located in the RB, Residential zoning district.  It is located on the corner of George St. and E. Pine St.  The property is set in the middle of Residential B.  This property allows any number of units per structure based on lot size.  It is the most intense residential district.  There are a lot of different zoning classifications in close proximity.  The bus garage is located in a community zone.  If approved, these variances will allow Mr. Waterman to construct a 1,200 square foot addition to this single unit, nonconforming structure.

      The lot size is 40’ x 80’ (3,200 sq. ft.) so the lot is too small.  If it were a 3 to 6-unit home, the lot would be required to have 10,000 sq. ft.  The existing setbacks are 9.6 ft. (front), 8.7 ft. (interior side), 12.6 ft. (rear yard) and the house encroaches 7.7 feet into the East Pine Street right of way.  The house was built in 1920.  The sidewalk jogs around the house.  The plat for this area goes back to the 1870’s. 

 

The following variances must be granted:

 

  1. Density requirements –  7,200 sq. ft. for duplex and 10,000 sq. ft. lot for triplex:
    1. A duplex will require a variance of 2,800 square feet of lot area
    2. A triplex will require a variance of 6,800 square feet of lot area

 

  1. Lot width requirements – 60 ft. width for duplex and 70 ft. width for triplex:
    1. A duplex will require a variance of 20 feet of lot width.
    2. A triplex will require a variance of 30 feet of lot width.

 

  1. Lot setbacks – duplex – 25’ FY, 25’ RY, 10’ SSY, 5’ SY and triplex – 25’ FY, 25’ RY, 15’ SSY, 10’ SY:
    1. A duplex will require the following variances: 6.5 foot rear yard reduction to 18.5 ft., an 8 foot side street yard reduction to 2 feet and the front yard setback has not been identified by the petitioner.
    2. A triplex will require the following variances: 6.5 foot rear yard reduction and a 13 foot side street yard reduction.

 

Mr. Poprave also showed photographs of the property.  One letter of opposition was received from the neighbor at 604 George Street and five additional letters of opposition, from property owners on George Street, and a tenant at 610 George Street.

 

Bill Waterman of 2320 North Old Pine Trail, Larkin Township stated that there is a 22-foot car hauler parked at the rear of the house and easily provides three parking spaces there and the garage has space for two cars.  The petitioner has already met with Mr. Lynch of the city regarding the right-of-way issues.  They do not anticipate any issues with the City Council regarding the roof pitch and drainage onto city property.  Mr. Engwis and Mr. Humpbert already have multiple unit properties.  They are looking at a $50,000 addition to this property.  The petitioner stated that this house is set up to be a 2-unit dwelling. 

 

The petitioner brought petitions from people within 300 feet of this property with 24 signatures in support of this addition. 

 

The area is zoned for Residential B.  Most of these conversions have been done in the past eight to ten years.  The petitioner showed a front view of the house.  If he does not receive the variance, they will straight truss from one side to the other.  This house pre-dates most of the rest of the dwellings in this subdivision.  The will renovate the porch areas and new fascia.  They will make it a 2-unit house.  It will be sage green siding all the way up.  The windows will be replaced with new vinyl windows.   The permitted purpose for this lot is residential B.  It is intended for multi-family housing.  They are trying to make it look attractive.  Substantial justice for the neighborhood is an increase in their property values due to the renovation of the worst building in their neighborhood.  This is the minimum variance they could ask for to remedy the pre-existing problems.  It will be a 2-unit, one bedroom up and one bedroom down whether the variance is granted or not.  The petitioner believes he can legally do that.  The property is unique because it was built in 1920 and is presently 1,700 square feet in size.  Roads did not exist then, sidewalks did not exist then and setbacks did not exist then.  The Ordinance was created after the roof lines were constructed.  They are trying to add the minimal amount they can to get this house to remedy the existing problems and not add unnecessary bulk to the building.

 

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

 

Hearing no further comments the Vice-Chairman closed the public hearing and directed the Board to enter into fact finding.

 

Findings of Fact:

 

  1. The property is zoned RB residential.
  2. Five letters were in opposition to the proposed use as a triplex and parking, but were in favor of renovation.
  3. The signature list contains 24 signatures supporting renovation and a second floor addition.
  4. The property is a corner lot bounded by George Street and E. Pine St.
  5. The lot size is 55-1/2 % less than required for one and two family dwellings and 68% less than required for 3-6 unit dwellings.
  6. The existing structure is non-conforming because of deficiencies in lot size, lot width and setbacks.
  7. Five parking spaces are available.
  8. The Zoning Ordinance prohibits the expansion of a nonconforming structure without a variance.
  9. The existing structure encroaches into the E. Pine Street right-of-way.
  10. The property currently has two driveways.
  11. The house was built in the 1920’s.
  12. The property was purchased by the petitioner in December 2005.
  13. Per the City Attorney the roof pitch, in the public right of way, cannot be changed without City Council approval.
  14. The petitioner stated that a 2-unit dwelling is the minimum needed for his return on investment.
  15. The second story addition size of 1,200 sq. ft. is based on building code foundation requirements.

 

It is moved by Sutton and supported by Holthof to approve Petition No. 06-09(a) for use of the structure as a duplex based on the findings of fact.

 

Holthof can support this as the surrounding properties are all being used as multi-family dwellings.  This is all based upon when this property was built.  All the criteria are addressed by the date of the building of this dwelling unit.

 

Siemer believes that the use will provide substantial justice to the applicant by making it financially viable.  He believes the problem is that there is a house on a lot that was platted prior to the ordinance criteria.

 

Sutton agrees with Holthof and Siemer.  Criteria “c” is met because there is no paperwork to show where there was a transition from one use to another.  The duplex falls into line with other dwellings in the area. 

 

Higgins has some problems with this.  Putting a duplex in a single-family home on a lot that is too small creates a problem for Jack.  He cannot argue with anyone on the five criteria.

 

Green stated the parking is a major concern.  It seems like the parking would be adequate.  There will still be a large facility on a small lot.  However, it is zoned that way.

 

Voting support of the motion:

Higgins:  No

Holthof:  Yes

Green:   No

Sutton:  Yes

Siemer:  Yes

 

The motion to approve petition 06-09(a) passes 3-2.

 

It is moved by Holthof and supported by Sutton to approve Petition No. 06-09(b) based on the findings of fact which would allow the 1,200 sq. ft. second story addition to be constructed, meeting the existing structure setbacks with exception of the E. Pine Street right of way encroachment.

 

Holthof stated the proposed roof line is much more appealing than the existing roof line.  The renovations will keep the structure with a much more appealing look than the existing building.  It will do justice to the surrounding neighborhood.  It is based upon the load bearing walls.  It is also based upon the zoning code of the time period when the house was built.

 

Higgins, Siemer and Sutton agree with Holthof.  Green also concurs.

 

Voting support of the motion:

Higgins:  Yes

Holthof:  Yes

Green:  Yes

Sutton:  Yes

Siemer:  Yes

 

The motion to approve petition 06-09(b) passes 5-0.

 

4.                  PUBLIC COMMENTS (not related to items on the agenda)

 

None

 

5.      OLD BUSINESS

 

None

 

6.      NEW BUSINESS

 

a.   Recognition of Sally Ann Sutton’s service – She has served for 15 years on the Zoning Board of Appeals.  This is very admirable and she should be congratulated for her long volunteer service to the City.

 

  1. New member appointments – They will be starting in July.

 

  1. July Organization Meeting – We will select new officers at this meeting. 

 

d.   Dollar Daze – This court case has been resolved.  The neighbors who originally wanted the fence and the protection stated if they keep the existing vegetation, they will be happy.  The neighbors and the judge reached a deal.

 

7.   DECISION SHEET SIGNATURES

 

      a. 06-04 approval of findings of fact.

      b. 06-05 approval of findings of fact.

 

8.   ADJOURNMENT.

 

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

 

 

Respectfully submitted,

 

 

 

Daryl Poprave

City Planner