MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, MAY 20, 2008

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

MIDLAND, MICHIGAN

1. ROLL CALL

PRESENT: Board Members - Green, Holthof, Lichtenwald, Pnacek, and Siemer

ABSENT: Board Members – Steele

OTHERS PRESENT: Daryl Poprave, Cheri King, and 4 others.

2. APPROVAL OF MINUTES

It was moved by Siemer and supported by Green to approve the minutes of the April 15, 2008 meeting as presented. Motion was unanimously approved.

The Chairman explained the public hearing procedures and how the Board decides if the variance request is approved based on the five ordinance criteria. Mr. Lichtenwald reinforced that the variance goes with the property and not with the property owner.

3. PUBLIC HEARINGS

a. No. 08-03 – Dale Fultz, Jr. for an area/dimension variance for a side yard setback reduction for a covered porch at 3901 Cambridge Street.

Mr. Poprave showed an aerial photograph of the subject property. It is located south of East Sugnet and east of Jefferson on Cambridge Street, which is also west of Boston. It is zoned RA-1 on all sides for several blocks. If approved, this request will allow the petitioner to construct a 10’ x 50’ covered porch at 3901 Cambridge Street. The Zoning Ordinance sets a side yard setback of 8’ with a total of 20’ on both sides. The plot plan submitted by the property owner shows the east side yard is adjacent to a walkway to a city park. The house setback from that property line is only four feet. However, the other side of the house has eight feet from the existing garage. This is only a 70’ wide lot, where today we require 80’ wide lots. There is a garage addition planned, which will conform to the setback requirements. The variance is for the covered porch, not the garage.

Article 4 of the Zoning Ordinance discusses nonconforming structures and their expansion. We have an existing structure that is too close to the property line and they want to extend a porch into that setback area on the east side. They want to extend the porch out 10’. They did start the process, thinking they had the proper setback. Once they found they did not meet the ordinance requirements, they stopped construction and decided to seek a variance.

Mr. Higgins asked if the porch will be enclosed. Mr. Poprave stated this would be a question for the petitioner. If this were an uncovered porch, it could encroach into the setback. It is the roof that causes it to meet the setback requirements.

Dale Fultz, Jr., 3901 Cambridge Street, stated that it was originally thought that the existing house was in conformance and they would extend the roof line from there. They wanted to extend the roof so the sun did not heat the house in the summer. The construction crews began the construction while the property owner went to obtain a permit. When the petitioner discovered he could not obtain a permit without a variance, worked was stopped immediately. The have only a small area between the existing garage addition and the house. The existing house roof line was not a proper pitch where they could include the porch. They went from the peak of the roof and that way they could make one straight line from the peak out to the edge of the porch.

Mr. Higgins asked if the porch is going to be enclosed or open. Mr. Fultz stated it is going to be enclosed with screen. Mr. Higgins asked why moving the porch over 4 feet would be unnecessarily burdensome? Mr. Fultz stated that if the sun beats on the window on the south side of the house, it will create substantial heat in the house. At this time, they do not have air conditioning installed in the home. The construction people also told Mr. Fultz that he could be creating a leak problem with the roof if they do not continue with the slope of the roof. The porch will be sided to match the house. There will be no heat in this room so it will not be used in the winter time. Mr. Lichtenwald asked how long they have owned the house. Mr. Fultz stated they purchased the home in November of 2007. They moved up here in January of 2008 from Florida.

No one spoke either in favor of or in opposition to this request. The Chairman closed the public hearing and directed the ZBA to enter into findings of fact.

Findings of Fact:

1. The house is legal non-conforming in that it has a 4’ setback from the east property line.

2. The property is 70 feet wide when current conditions require 80’ lots in RA-1 zoning districts.

3. There is one letter in favor of this request and there were no calls.

4. The addition would be a screened-in porch.

5. The addition will not add to the non-conformity in that it will not encroach into the setback any more than the current non-conformity.

6. The house was purchased in November 2007 by the current property owner.

It is moved by Higgins and supported by Siemer to approve Petition No. 08-03 based on the findings of fact to allow a side yard setback reduction for a covered porch at 3901 Cambridge Street.

Mr. Higgins feels that, since the lot is narrower than the 80’ required and that the non-conformity is not going to increase, except it will extend closer to the road, he feels he can meet the first four criteria. He has a problem with the “self-created” criterion.

Mr. Green stated he agrees with Mr. Higgins. The east side of the property will not be any closer to the property line than it is already. The house will be used as a house and that is a permitted purpose.

Mr. Holthof stated he wished the builder were here. He cannot see where this would be causing a leak problem with the new roof over the porch. There is support from a neighboring property owner and he feels it does justice to other property owners in the area. The burden is that it will make construction much more expensive if it is a shorter roof line.

Mr. Siemer agrees with Mr. Holthof and he also feels the narrowness of this lot causes a burden to the property owner.

Mr. Lichtenwald stated that he does not agree with Mr. Holthof and believes that the criterion “a” has not been met. By changing the roof line you would have fewer trusses and fewer shingles if you have a smaller roof. The petitioner stated that the porch is there to keep his house cool. He can still use the house as a house without the porch. There are many houses in the city that have windows facing south and they do not have coverings over them.

Voting on the motion:

Green: Yes

Higgins: Yes

Holthof: Yes

Lichtenwald: No

Siemer: Yes

The motion to approve the Petition 08-03 was approved 4-1.

b. No. 08-04 – Joe Wolgast for an area/dimension variance for a side street yard setback reduction for a proposed garage addition at 2212 Luhring Street.

Mr. Poprave showed the subject property at 2212 Luhring Street, located east of Campau, north of Luhring, just west of Highridge Court. We have St. Mary’s Drive to the west. The zoning map identifies this property in the middle of a large residential district on all sides. Section 14.03 of the zoning ordinance states that a street side yard setback is 20 feet. This lot is over 13,000 square feet where a minimum of 12,000 sq. ft. are required. This lot is 100 feet wide so this lot is larger than required in RA-1 zoning. The existing home is 32 feet from the sidewalk/property line. The petitioner wishes to construct this garage to within 18 feet of the property line. The existing house does conform to the ordinance. The garage addition is below the existing home. Staff believes that the petitioners want to extend it out with just one story.

No one represented the petitioner at this hearing. No one spoke either in favor of or in opposition to this request. The Chairman closed the public hearing and directed the ZBA to enter into findings of fact.

Findings of Fact:

1. The lot exceeds the minimum size requirements in the RA-1 District.

2. The lot is a corner lot.

3. The house exceeds 32 feet from the property line.

4. The property is zoned RA-1.

5. There was no correspondence or any one to speak for or against this petition.

It is moved by Higgins and supported by Green to approve Petition No. 08-04 based on the findings of fact to allow a side street yard setback reduction for a proposed garage addition at 2212 Luhring Street.

Mr. Holthof stated we have no basis for determining how this is burdensome to the petitioner because they are not here to answer any questions. Mr. Holthof stated that he believes the request is a self-created hardship because the lot is of sufficient size to meet the zoning ordinance requirements and all of the required setbacks are met.

The remainder of the Board was in agreement with these statements.

Voting on the motion:

Green: No

Higgins: No

Holthof: No

Lichtenwald: No

Siemer: No

The motion to approve the Petition 08-04 was denied 0-5.

c. No. 08-05 – Harmon Sign on behalf of Cottage Inn Pizza for an area/dimension variance for a wall sign variance at 985 South Saginaw Road.

This property is located west of Washington Street and north of Eastlawn Drive, and east of S. Saginaw Road. Eastlawn Shopping Center starts on S. Saginaw Road. There are three main buildings on this property. The property is zoned Regional Commercial. If approved, this variance would allow a 33.25 sq. ft. wall sign at 985 S. Saginaw Road. Mr. Poprave showed a color picture of the proposed sign and how it will look. It is superimposed on the existing canopy. Table 8.2, footnote “e” states that retail strip malls can have an aggregate signage of 300 sq. ft. for the entire building. It is up to the property owner to assign specific wall sign allotments. The signage on this building (304 sq. ft.) already exceeds what is allowed by the ordinance. Because the signage already exceeds the allowable signage, a variance is required. There are three buildings on this property, so both large buildings could have 300 sq. ft. of signage plus the smaller building (Murphy’s Auto Parts) could have 150 sq. ft. of signage. There have been two variance requests for additional signage at this location. In 1982, at 931 S. Saginaw Road (Walgreen’s), there was a request for 46.2 sq. ft. of signage and they were denied. In 1976, Eastlawn Pharmacy, at 831 S. Saginaw Road, was granted 73.6 sq. ft. of signage. As the ZBA knows signage goes with the property. Although there was a variance granted for one building on the property, you cannot transfer that to another building on the property.

Dan Collins, Harmon Sign, for property at 985 S. Saginaw Road. Mr. Collins states that there is already 304 to 307 sq. ft. of signage there now. The yogurt store sign is gone so that signage was not included in this amount. They are asking for a sign that is smaller than most of the surrounding businesses. Most of the surrounding signs cannot be seen after dark. Much of the business of a pizza restaurant is done in the evening. When it gets dark outside, sales are quite low.

Mr. Higgins stated this building is allowed to have 300 sq. ft. of signage. All of this signage has been utilized by the existing businesses. Cottage Inn Pizza is approximately one ninth of the store area. 33 sq. ft. is approximately one ninth of the allowable signage based upon 300 sq. ft. of signage. It is not the place of the Zoning Board of Appeals to require a sign management plan. If the property owner wants to let each tenant apply for additional signage, that is his option.

Mr. Lichtenwald asked if this was a lighted sign. The petitioner stated that it is a lighted sign. This is a custom made sign for this location.

Tim Danson, 985 S. Saginaw Road, is the partner for this business. They just want a sign so they get recognition like any other business in town. If they can have a lighted sign they can do more business at night and, therefore, employ more people in the community.

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

Findings of Fact:

1. Zoning is RC.

2. It is legal nonconforming – it has 304 sq. ft. where 300 sq. ft. is allowed, not including the empty yogurt store.

3. There are nine units in the plaza.

4. Most wall signs existed prior to the current zoning ordinance.

5. The previous sign was 17.5 sq. ft.

6. One ninth of the 300 feet of signage would be 33.3 sq. ft., allocated equally among all the businesses.

It is moved by Higgins and supported by Siemer to approve Petition No. 08-05 based on the findings of fact to allow a wall sign variance at 985 South Saginaw Road.

Mr. Holthof stated he does not see how he can meet criteria A, which is the compliance regarding unreasonably preventing the use of the property for a permitted purpose or would make it unnecessarily burdensome.

Mr. Higgins stated he agrees with Mr. Holthof. If it were just for this tenant, he would not have a problem. However, 300 sq. ft. is allowed for the nine units in the building, but the variance would go to the building owner. From that standpoint, he also cannot justify criteria E, that it would be self-created.

Mr. Green stated this is a unique situation. We have a potential business that needs a sign. However, we have a remedy that there is an empty business and that sign can be removed to allow signage for Cottage Inn Pizza, within the limits of the ordinance.

Mr. Siemer stated he believes they have addressed all the criteria and he finds that the burden is that the owner of the property has not reallocated the signage. Therefore, it is unnecessarily burdensome to this petitioner.

Mr. Lichtenwald stated he is in agreement with what has already been said.

Voting on the motion:

Green: No

Higgins: No

Holthof: No

Lichtenwald: No

Siemer: Yes

The motion to approve the Petition 08-05 was denied 1-4.

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

None

5. OLD BUSINESS

None

6. NEW BUSINESS

a. 2008 Zoning Ordinance amendments.

b. The next ZBA meeting will be held on Wednesday, June 11^th, which was rescheduled. There is one case already scheduled for that meeting.

Mr. Holthof asked city staff to look into a zoning ordinance amendment which would require only property owners to petition for sign variances. Staff stated that they would research this request and obtain an opinion from the City Attorney by the July ZBA meeting.

7. DECISION SHEET SIGNATURES

1. 08-01 recorded
2. 08-02 review of findings of fact

8. ADJOURNMENT

Hearing no further business, the Chairman adjourned the meeting at 8:33 p.m.

Respectfully submitted,

Daryl Poprave, AICP, CFM

Deputy Planning Director