1-16-07 Zoning Board of Appeals Meeting Minutes

MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, JANUARY 16, 2007

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

MIDLAND, MICHIGAN

1. ROLL CALL

PRESENT: Board Members - Green, Higgins, Lichtenwald, and Steele

ABSENT: Board Members - Holthof

OTHERS PRESENT: Daryl Poprave, Acting Director of Planning & Community Development, Cheri Standfest, Community Development Specialist and 17 others.

2. APPROVAL OF MINUTES

It was moved by Steele and supported by Higgins to approve the minutes of the October 17, 2006 meeting as presented. Motion was unanimously approved.

3. PUBLIC HEARINGS

a. No. 07-01 – Jenkins Custom Jewelers for an area/dimension variance to allow four, newly installed, wall signs to exceed the Zoning Ordinance requirements at 205 South Saginaw Road, which is located within the Circle District.

Mr. Poprave showed an aerial photograph of the subject site. It is located north and east of Saginaw Road, within the Circle Zoning District. It is surrounded on all sides by the Circle District. To the east, there is multiple- family residential and some regional commercial to the south. Mr. Jenkins desires to have four signs in addition to the one that existed prior to his taking over this business. He desires to have 151 additional square feet of signage. The Circle District has only been inexistence since 2005. There was no commonality in zoning of this area. It was a mix of residential and office service. Both the Circle District and the Downtown District have the same signage restrictions. The Circle business owners and the City wanted the two districts to look similar in signage and to be pedestrian friendly. In the Circle District, they only have to provide half of the parking required in other commercial districts with exception of the Downtown District which has a 100% exemption. Table 8.2 limits the total signage in the Circle District to 40 sq. ft. In addition, the 22 sq. ft. of signage over the building already existed; they just changed the face of that sign. The Board received five letters in opposition to and three letters in support of this petition. It is staff’s recommendation that this petition be denied. It is a self-created hardship as these signs were installed without sign permits. In addition, the signage on this building is a 300 percent increase in signage allowed in the Circle District. In fact in the Regional Commercial District, they are only allowed 150 sq. ft. of signage.

The petitioner, Dave Jenkins, 5820 Lamplighter Lane, Midland, stated that everything Daryl Poprave said is true. They have been struggling for ten years to get more people into their store. After they put these signs up in December, they had a 30 percent increase in traffic and a 20 percent increase in income, which he attributes to the increased signage. Next to his business, on the right side, Circle Quality Shoes’ signage rather dwarfs his signs. The Mane Hair Company sign also has a large sign on the end of the building. Discount Tire also has a lot of signage. Those seem to be pretty successful companies and Mr. Jenkins thinks it is due to the signage that they have. He would like signs on both sides of his building and he would like to follow the rules but he definitely wants more signage. He states once there is something official done in the Circle Business District, he will be one of the first ones to participate. Until such time, he wants to compete with other businesses around him.

Higgins stated he has a problem with the first criteria stating that “conforming with the ordinance is unnecessarily burdensome”. What burden would that place on the business?

The petitioner stated the jewelry industry has suffered for the past few years and the additional signage has helped his business.

Green asked the petitioner to comment on the third criteria that this is the minimum variance required to provide him relief.

The petitioner stated when he first moved in there, he was Goldspot Jewelers. It had a neon sign and was on the back side. When they took the family name of Jenkins Custom Jewelers, they put the sign up on the front. He did contact Mr. Wegner (Electrical Inspector), in the City Building Department prior to putting up the signs. The petitioner knew he was putting up more signage than was allowed by the zoning ordinance.

Steele stated “The Diamond Factory” sign, which is 90 sq. ft., was quite large. What could they do to change that? The petitioner stated he could make it smaller. This sign was sent to him by The Diamond Factory for free so he put it up.

Having no further questions of the petitioner, the Chairman asked if there was anyone present who wished to speak in favor of the petition, hearing none, the Chairman asked if there was anyone present who wished to speak in opposition to the request.

John Quast, the secretary of the Circle Business Association, spoke in opposition to this request. He stated that he, too, wanted additional signage but when he came to City Hall and tried to complete the paperwork, he decided to forget it. He feels that advertising is a great help for businesses. Customers now have time to shop on nights and weekends. He stated that many of the businesses on the Circle are not open at night. If you want to compete with the mall and other large stores, you have to be open nights and weekends. The Circle Business Association has agreed to try to work with the City to try to improve the entire business area and everyone should conform to the rules.

Steve Bush, 4415 Gladding Court, Midland, stated the applicant is a very good friend of his. He appreciates his petition and the reasons for it. His wife owns a jewelry store in downtown Midland. She did not change the size of her sign and she had a very profitable year this past Christmas. He assured the Board that the Circle Business Association has a common theme and a common goal to meet the criteria of the zoning ordinance. There are varied needs that come before this board. The Circle Business Area has some unique issues such as streets that run both in front of and behind the stores. Mr. Wegner has been very helpful in the past in explaining the requirements for signs in the past. He stated he is sure Mr. Jenkins has good reasons for wanting the additional signage. However, he feels that Mr. Jenkins is asking for an outlandish amount of signage, he feels that the Board should deny this variance request.

Higgins asked the petitioner how much signage was there before he added the additional signage. The petitioner stated he had one sign that was about 26 sq. ft. and another sign that was about 42 sq. ft.

The Chairman asked the petitioner if he wished to rebut any of the opposition’s comments and the petitioner stated he did not.

Hearing no further public comments, the Chairman closed the public hearing and directed the Board to enter into findings of fact on the request.

Findings of Fact:

1. The area is in the Circle District.

2. There were three letters in support and five letters in opposition to this request and two persons spoke in opposition to this request (though Mr. Quast also wrote in opposition as well).

3. The building is located on the east side of South Saginaw Road.

4. The speed limit is 35 mph.

5. Approximately 149 sq. ft. of wall signage was added without permission from the City.

6. The signage was added before the variance request was made to the City.

7. The amount of signage is 300 percent greater than what is allowed in the Circle District.

8. The existing wall sign is approximately 22 sq. ft. and under the zoning ordinance he would be granted wall signage not to exceed 44 sq. ft.

9. Two businesses are advertised on the outside the building.

It is moved by Steele, supported by Green, to approve Petition No. 07-01 based on the findings of fact for wall signage to exceed the Zoning Ordinance at 205 South Saginaw Road.

Steele feels there is too much signage now, but the way the rules are set up, they almost seem too restrictive to him. However, the law has stated and it has been agreed upon that they are allowed 44 sq. ft. Mr. Jenkins started out with 68 sq. ft., which is still more than is allowed.

Green stated they have to address all five criteria in the affirmative. The question is “could a business function in this area without the additional signage”? There has been an organization set up to establish rules for businesses in this area. Obviously, business could exist in this area without the additional signage. Another criterion is whether the variance requested is the minimum amount necessary for relief? Based upon this, he has difficulty supporting this request.

Higgins agreed with Green. Questions A, C, and E are difficult for him to satisfy. Also, there has been an agreement between the Circle Business Association and the City of Midland. Therefore, he is in opposition to this request.

Chairman Lichtenwald agrees with Higgins that the five criteria have not been met.

Voting on the motion:

Green: No

Higgins: No

Lichtenwald: No

Steele: No

The motion to approve the Petition 07-01 was denied 4 - 0.

b. No. 07-02 – Woda Development for an area/dimension variance to encroach within the side yard setback to allow a 49 unit senior apartment building to be constructed on 2.7 acres of property at 2706 Jefferson Avenue.

Mr. Poprave showed an aerial photograph of the property that goes all the way from Jefferson to Bayliss Streets, north of Dartmouth, south of Rodd St. This is adjacent to the Circle District. It is located in the Community Commercial District. In article 21.1, the table of business uses, there is a conflict in the table regarding which district allows this type of use. Mr. Poprave stated that the Zoning Ordinance does permit this use as “housing for the elderly” as a principal permitted use with special standards. This building will be 305 feet long and 70 feet wide. The normal setback for a building this size would be 25 feet on each side. This building will be three stories high. Section 9.02(I) of the Zoning Ordinance dictates that the north and south side yard setbacks be 66 feet thus, the petitioner needs a 31 foot variance on the north side and a 6 foot variance on the south side. This is also an irregular shaped site.

Craig Patterson, 328 S. State, Alpena, Michigan spoke on behalf of the petitioner, Woda Development. Woda Development is based in Columbus, Ohio, but he has an office in Alpena, Michigan. Woda Development is a seasoned developer of senior housing. The petitioner showed the façade of a development in Ohio that will be somewhat similar to what is being planned here in Midland. They will maximize green space if they have the ability to do so on the site. One of the reasons they chose this site was due to the commercial property next to it.

Green asked the petitioner to address the five criteria. The petitioner stated that strict compliance is met except for the setback criteria. They would have to build three separate buildings to get the same number of units if they were to comply with the Ordinance. There will be elevators in this facility. The variance will do substantial justice to the applicant as well as other property owners. Because of the length of the lot, it gives them the ability to keep some green space, but they need to be able to build their standard number of units. They will bring 90 residents that could easily walk to the adjacent businesses in the commercial zoning districts. They feel they can maximize the density and minimize the number of buildings, which will allow them to keep the green space they desire. Each of these individual units will have their own cooking facilities. Each unit would be able to operate and live independently. It is more like an apartment for seniors. This would have a community room where people could bring in meals for a party, but that would be for residents’ use only.

Having no further questions of the petitioner, the Chairman asked if there was anyone present who wished to speak in favor of the petition.

Matthew A. Rapanos, Midland, spoke on behalf of the petitioner. He is the owner of the property. Some of the buildings that were built in the past 50 years have much less green space that what is being proposed here. He is very pleased with this proposal.

Next, the Chairman asked if there was anyone present who wished to speak in opposition to the petition.

Bill Waterman, 2320 North Old Pine Trail, Midland, who is a member of the Midland Real Estate Investment Association, stated that for the past three years, the landlords have been asking for a study of rental housing in this area. There are 15-20 landlords selling their properties downtown. Washington Woods have vacancies, as well as Greenhill Apartments, Village Town homes, Charter Square. Several PILOT projects are currently not filled to capacity. There are too many vacant units in town to build additional units at this time.

The Chairman asked the petitioner if he wished to rebut any of opposition’s comments.

The petitioner stated he appreciated Mr. Waterman’s comments. The petitioner stated, if they receive a variance tonight, they would submit a site plan. Before they submit the site plan, however, they would do a market study and see what this area would bear. They would not proceed if they felt they could not justify the investment. Because they are applying to the Michigan State Housing Development Authority, they are asking for additional time to obtain their building permits for this property. MSHDA has lengthened their time to approve LIHTC projects. He thinks it would be the first quarter of 2008 until they find out if they get the low-income housing tax credits. They would not be able to act on their variance until they are sure they receive the tax credits.

Hearing no further public comments, the Chairman closed the public hearing and directed the Board to enter into findings of fact on the request.

Findings of Fact:

1. The area is zoned Community Commercial.

2. There was one letter and one statement of verbal support from the same individual.

3. There was one personal statement in opposition to the proposal.

4. The apartment complex is targeted for a specific market, being housing for the elderly.

5. The property is bounded by Bayliss and Jefferson.

6. It is adjacent to two existing commercial districts.

7. The proposed structure will contain approximately 49 units.

8. The proposed building is approximately 70 feet by 305 feet in size.

9. The property is long and narrow, and irregularly shaped lot ranging from 134 ft. to 181 ft. in width and 792 ft. in depth. It is 2.7 acres.

It is moved by Higgins, supported by Steele, to approve Petition No. 07-02 based on the findings of fact for a side yard setback reduction of 31 feet on the north side and six feet on the south side, at 2706 Jefferson Avenue.

Higgins feels that this whole issue boils down to the size of this lot. By putting this particular building in, they are leaving much more green space than many uses would. Elevators for the elderly are absolutely necessary. The long, narrow lot answers several of these questions and he can support this request.

Steele stated there are a lot of businesses to which these people could walk.

Green agrees with Higgins. He feels all the criteria have been met. Lichtenwald stated he also can justify all the criteria.

Voting on the motion:

Green: Yes

Higgins: Yes

Lichtenwald: Yes

Steele: Yes

The motion to approve the Petition 07-02 was approved 4 - 0.

Regarding the need for a variance extension, Higgins stated he would like the petitioner to come back in six months and request the extension if they are going to go ahead with the project. He would like to see them do the market study and make sure they are going to build this building before the board gives them an extension.

The petitioner agreed and will come back with his extension request once a market study has determined that this project will proceed.

c. No. 07-03 – Cindy Seelhoff for an area/dimension variance to encroach within the side yard setback to permit an attached garage to exist at 1610 Sayre Street.

The property is located at 1610 Sayre Street. It is an area/dimension variance request to allow a garage to be built in the setback area. The property is located east of Eastman Avenue, south of Carpenter Street. The zoning map shows this property is zoned RA-3, adjacent to RB and RA-4 residential, as well as some single family across Eastman Avenue. This request is for a side yard setback reduction to allow an attached garage to be built onto the home. The current garage is on the back side of the home. It is currently at a 90 degree angle to the driveway. The petitioner desires to construct a new, single car garage within one foot, one inch of the property line. As this garage is attached to the home, it must maintain the same setback as the home which in this district is seven feet. This home does conform to the zoning ordinance as far as minimum lot size. The home was built in 1920. The front of the home does encroach within the setback but there is no variance issue concerns this portion of the property. The current garage does meet the side yard setback. Staff questions the need for the variance, as the petitioner does have room for a two-car detached garage in the rear yard and she could still maintain the existing garage as an extension of the home. The current request is to build within one foot of the property line and there are other options that exist that would not require a variance. If the garage were detached, it could be built within five feet of the rear lot line and three feet from the side lot line.

Cindy Seelhoff, 1610 Sayre Street, Midland, spoke, stating that her neighbors were going to come and speak in favor of her request but she discouraged them from coming. Lichtenwald asked the petitioner to review the five criteria. The benefit is mostly for her neighbor, as she would not have to drive on her neighbor’s property any more. The property line sits on the outer edge of her driveway. The neighbor’s driveway sits on the other side of her neighbor’s house. The petitioner stated she has to drive on her neighbor’s property every time she drives into her garage. She would like to convert the existing garage into living space. Her sewer line, power cable and water line are all on the west side of her front porch and there is a tree on the west side of her house so moving the driveway to the other side of the house is not an option. There are no street lights and her back yard is dark. She has three rentals to the west of her house and 1016 Treatment Center is behind her house. She feels a detached garage would be a safety issue for her. A detached garage must be six feet away from the main structure.

Hearing no further public comments, the Chairman closed the public hearing and directed the Board to enter into findings of fact on the request.

Findings of Fact:

1. The property is zoned RA-3 residential, but it is bounded on the north side by RB property.

2. There were no comments either in favor or in opposition.

3. The current garage is attached and is located behind the existing house.

4. The garage conforms to the zoning ordinance so far as setbacks are concerned.

5. The house was built prior to the current zoning ordinance.

6. The proposed garage request will be constructed within 1foot 1 inch of the east property line.

7. The proposed garage would be behind the front of the adjacent property.

8. There is currently a detached shed sitting on the northeast corner of the property.

9. The petitioner has lived in the house since 1988.

10. There appears to be enough room on the property to construct a detached garage or to rebuild the existing attached garage behind the house, either the same size or larger and still meet the zoning ordinance, setback requirements.

It is moved by Higgins, supported by Green, to approve Petition No. 07-03 based on the findings of fact for a side yard setback reduction at 1610 Sayre Street.

Higgins recognizes that the petitioner has a concerns over several things, one being forced to drive on her neighbors property to get into her garage, the second being her proximity to 1016 Treatment Center. He does not see anything different with this property from many others in this neighborhood. She can build detached garage in the rear yard or an attached garage in the back of her existing garage without a variance. It appears that nothing has created this except her desire to have an attached garage within 1 foot 1 inch of the property line.

Steele agrees with Higgins. He agrees with all the issues, but, unfortunately, with the size of the lot, he does not know how they could allow this and still be fair to the next person who comes before them. Green states there are viable alternatives for the petitioner. Green has several issues which concern him regarding this request, the issue of 1 foot 1 inch, the issue of water run-off, and the issue of the fact that there are alternatives that fit within the zoning ordinance that do not require a variance.

Lichtenwald is in agreement with what has been said by the other Board members.

Voting on the motion:

Green: No

Higgins: No

Lichtenwald: No

Steele: No

The motion to approve the Petition 07-03 was denied 4 - 0.

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

Bill Waterman, 2320 North Old Pine Trail, Midland, came to talk about a project at 614 George Street (06-09). He showed pictures of a house that received a variance from the Board in the past and how the house looks today. This has been a great improvement to the neighborhood and he just came tonight to say thank you to the Board. They still have a few things to finish up but they are very pleased with the way the project has turned out.

5. OLD BUSINESS

The following petitioners are requesting a time extension for their variances.

No. 05-02 – Speedway Gas Station for an area/dimension variance to permit a rebuild of a canopy at 1215 South Saginaw Road originally, approved by the Board on April 19, 2005.

The variance was to allow a previously damaged canopy over the pump islands to be rebuilt. Most gas stations have canopies these days. Speedway was going to purchase this property, but the owner died. The property was tied up in Probate Court for quite some time, as there was no will. Speedway is still attempting to purchase this property, but there have been some legal problems that have prevented this to date. The letter from Speedway states they can have this canopy built by April 16, 2007. Mr. Poprave did confirm this date with Speedway’s representative Chuck Selves.

It was moved by Higgins, supported by Green to approve an extension to petition 05-02 until April 16, 2007, in accordance with the letter submitted by the petitioner. Motion passed unanimously.

No. 06-15 – David Koepplinger on behalf of Midland King’s Daughters Home for an area/dimension variance to reduce the required rear yard setback at 2410 Rodd Street for a proposed 13,600 sq. ft. addition. The petition was originally approved on October 17, 2006.

This variance has not expired yet, but no action has been taken on this yet. The petitioners have been asking for a petition since the variance was granted in October, 2006.

Julie Roberts, project architect from Dow, Howell, Gilmore, Associates represented the petitioner. The issues that held up this project were contract review and fund raising issues. The contracts have not been signed yet, but they are ready to be signed. The fund raising issues have also been resolved at this time so these are no longer an issue. They would like an extension so they can get their building permits in 2008. They have not even gotten drawings or bids for this project yet. Construction of this project will not begin until next year.

It was moved by Higgins, supported by Green to approve an extension to petition 06-15 until March 30, 2008, in accordance with the time line submitted by the petitioner. Motion passed unanimously.

6. NEW BUSINESS

Mr. Poprave stated that the City is advertising the public input sessions for the proposed master plan these meetings will occur on February 1, 2007 at 7 pm in the City Council Chambers and February 2, 2007 at 7:30 am in the same place. He encouraged members of the community and the Board to come to the meetings to get an advanced look at the proposed document. The complete draft of the master plan will be available on Friday, January 19, 2007 by viewing the City’s website at www.midland-mi.org. In early March, there will be a special meeting of the joint City Council and Planning Commission to start the formal review with the surrounding townships and the county. Finally, the new Planning Director, Keith Baker’s first day will be January 29, 2007. Mr. Baker will be at the next ZBA meeting to introduce himself to the Board.

7. DECISION SHEET SIGNATURES

06-13 recorded copy

b. 06-14 approval of findings of fact

c. 06-15 approval of findings of fact

8. ADJOURNMENT

The Chairman adjourned the meeting at 9:13 p.m.

Respectfully submitted,

Daryl Poprave

Acting Director of Planning & Community Development