MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, JULY 15, 2008

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

MIDLAND, MICHIGAN

1. ROLL CALL

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

ABSENT: Board Members – Lichtenwald

OTHERS PRESENT: Daryl Poprave, Cheri King, and 5 others.

2. APPROVAL OF MINUTES

Item 8-06, pg. 2, Mr. Steele had a concern – should say from 17 to 12.

It was moved by Siemer and supported by Higgins to approve the minutes of the June 11, 2008 meeting as corrected. Motion was unanimously approved.

3. PUBLIC HEARINGS

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. Green reinforced that the variance goes with the property and not with the property owner.

a. No. 08-07 – Midland Country Club for an area/dimension variance to allow the proposed clubhouse and pool cabana to exceed the building height requirements at 1120 West St. Andrews Road.

Mr. Poprave showed an aerial photograph of the Midland Country Club property. It is bounded on the west on Eastman Avenue, south of W. Sugnet, all the way to W. St. Andrews and the east side of the golf course ends just prior to Hillcrest. The zoning map shows that all of this property is contained within RA-1 zoning. If approved, this variance by the Midland Country Club to have a clubhouse and pool cabana at the height of 40 feet. Section 14.03 of the zoning ordinance states the maximum height of a building in RA-1 zoning is 28 feet. The Midland Country Club has already received a positive recommendation on the site plan and conditional use permit from the Planning Commission. The petitioner states the building will be at least 300 feet from W. St. Andrews Road. The farther back the building is set back on the property, the lower the appearance of the building height. It is not uncommon for churches to exceed 28 feet in height, if they are setback from the property line. The Midland Country Club is the only golf course located in RA-1 zoning. That makes this a very unique parcel of property. (The Golf Course Clubhouse is located in RB zoning.) In between the two peaks of the roof design is contained the heating and cooling systems. The Zoning Ordinance requires this mechanical equipment to be screened. This screening will allow the noise to go straight up rather than out into the surrounding residential neighborhoods.

Fred Eddy, Midland Engineering, 4322 Monroe Road, spoke on behalf of the petitioner. He showed the proposed site plan over a fairly small part of the total 116 acres. The new cabana building and pool will be where the existing clubhouse is located. The view from the 18^th green shows that this is a three-story structure. It is two stories on the W. St. Andrews side. All of the mechanical equipment will be hidden from view in the proposed site plan. When you take all the elevations into consideration, the peak will be 48 feet. The proposed cabana building is 18 feet and the requirement for an accessory building is only 16 feet. The height of the existing clubhouse, built in 1931, is 34 feet. Mr. Eddy addressed the five criteria as follows: (a) they just could not build the kind of building they need if this criteria were met. They could only build a one-story building and the size of the building would have to increase significantly. This would make the building very long and food would have to be transported down long hallways in order to get it to the outskirts of the building; (b) By having the shape where all mechanical equipment is screened, there will be much less noise to the surrounding properties. The noise will go up rather than out. (c) The clubhouse and the whole property is zoned single family residential. The nearest point of the building to W. St. Andrews Road will be over 300 feet. The building will average over 400 feet from the nearest street. The new building and the cabana will both be completely out of the flood plain.

Steele asked the petitioner if you will be able to see the new clubhouse from Eastman Avenue. The petitioner said yes.

Higgins asked a clarification question of other board members to make sure he understood about the height of the building in the context of this request.

Higgins asked floodplain clarification questions of the petitioner. The petitioner stated that the new clubhouse and pool cabana would be out of the 100 year floodplain including their lowest floors. He also asked why the Cabana needed to be 18 feet tall and was told because the building’s designed width dictated its height.

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 property is located at 1120 W. St. Andrews Road.

2. The area is zoned RA-1.

3. The setback of the clubhouse is in excess of 350 feet.

4. The average building height on all four sides is 48 feet which compares to the current building height of 34 feet.

5. The shape of the roof masks the equipment noise of the building mechanicals, which is a benefit to the neighborhood.

6. There were no communications received regarding this petition.

7. The parcel size is 116 acres.

8. The current main clubhouse is 65,000 sq. ft. The new clubhouse is 90,000 sq. ft.

9. The property is surrounded by RA-1, but touches Community on the Eastman Avenue side.

10. The request for the cabana is to be for an average of 18 foot in height, in the petitioner’s opinion.

11. The Midland City Planning Commission has already recommended approval of the site plan and conditional use permit on June 24, 2008.

12. The new building site will move the clubhouse and the cabana out of the 100-year floodplain.

13. The cabana will be 5,066 square feet in size.

It is moved by Steele and supported by Siemer to approve Petition No. 08-07 based on the findings of fact to allow the Midland Country Club to exceed the height requirements at 1120 West St. Andrews Road based on the findings of fact.

a) The proposed clubhouse building height shall not exceed 48 feet.

b) The proposed pool cabana building height shall not exceed 18 feet.

Steele really likes how they have screened and contained the noise on the heating and cooling equipment.

Holthof stated he thinks this is a good plan and he also likes the way the mechanical equipment has been screened. He has some concern about how this has not been self-created, but he feels this is very similar to churches and has a very large setback.

Siemer stated that this fits in well with the surrounding neighborhood is good and since churches and other public buildings are allowed additional height, he is in favor of this plan.

Higgins stated since they need the extra space needed to shield the equipment, this is the minimum variance needed in order to screen the mechanical equipment. He can meet all the criteria except the issue of being self-created. Although this looks very nice, he still has a problem with this not being self-created.

Green stated this is a unique piece of property. He is in favor of this variance.

Voting on motion (a):

Green: Yes

Higgins: Yes

Holthof: Yes

Siemer: Yes

Steele: Yes

The motion to approve the Petition 08-07(a) was approved 5-0.

Voting on motion (b):

Green: Yes

Higgins: No

Holthof: No

Siemer: Yes

Steele: Yes

The motion to approve the Petition 08-07(b) was approved 3-2.

Chairman Green announced a 5 minute recess to prepare for the next public hearings.

4. ROLL CALL

PRESENT: Board Members - Green, Higgins, Pnacek, Siemer, and Steele

ABSENT: Board Members – Lichtenwald, Holthof

OTHERS PRESENT: Daryl Poprave, Cheri King, and 3 others.

Chairman Green announced that a quorum has been re-established and directed staff to

introduce the next public hearing.

5. PUBLIC HEARINGS

a. 08-08 – Andrew Lovell for an area/dimension variance to allow a fence to exceed the height requirements in the side street yard setback at 4205 Partridge Lane.

Mr. Poprave showed an aerial photograph of the subject property. This property is located west of Woodbridge Lane and south of Partridge Lane. The zoning map shows us that this property is surrounded on all four sides by RA-1. The petition is to erect a 4’6” privacy fence in the required side street yard. The petitioner wishes to erect this fence within five feet of the east property line in the side street yard setback. The fence stays entirely within the side and rear yards. There is already a natural hedge along the east property line that would obscure the fence to make it less noticeable. The petitioner notes in his application that approximately 1020 square feet of yard would be lost if they are required to meet the required setback. There are several other properties in the city that have fences in the required side street yard areas. However, they have been there for some time. Prior to the current Zoning Ordinance, permits were not required for fences so the dates they were installed are difficult to determine. A 3-1/2 foot fence could go all the way to the property line and could extend into the required front yard setback. There is a sidewalk just to the east of the existing hedge. The home currently meets the setbacks as required by the Zoning Ordinance. This property has an outlot included with the main lot in this platted subdivision. It is wider than most of the other lots in the subdivision.

Sarah Lovell, of 4205 Partridge Lane, stated she is here because they would like to build a fence on their property a little bit higher than what is normally allowed. The fence would be even with the front line of the house. At the setback line, the tree would require an additional foot of setback. They are proposing a fence line from the rear of the lot that follows the natural hedge. The area of lost use would be approximately 1020 sq. ft. if they are required to meet the required setbacks. They are anxious to get their fence up and provide their children with a safe place to play outside. When the children are outside playing, someone could reach over a 3-1/2 foot fence and pick one of them up. That is why they would like the 4-1/2 foot fence. Criteria (a) talks about practical difficulty and strict compliance will prevent the owner from using the property for a permitted purpose. They live on a corner lot and have small children. A 3-1/2 foot fence does not provide the security they desire for their children. Criteria (b), they want to install a fence that meets the style of their home and provides the protection for their children. Criteria (c) addresses safety and they want the safety for their children. Criteria (d) addresses the possibilities for exceptions to the rule. She feels that other people on corner lots do not have small children and, therefore, do not require taller fences. Criteria (e) is met due to the fact that they have children who need the protection of the higher fence. They have not decided about the height of the fence across the back property line. However, they want to make it blend with the surrounding landscaping as much as possible.

They would like to follow the natural hedge and have their “dream” backyard. There will be a gate on the front side of the fence along the east side of the yard. Mrs. Lovell stated there have been changes to the neighborhood over the past year and they have counted 16 children under the age of ten.

Higgins asked the petitioner if the fence will surround the entire rear yard. The petitioner stated yes.

Steele asked the petitioner if she had considered other alternatives such as moving a portion of the fence outsides of the setback and only asking for a portion to encroach. It looks like part of the east side of the yard is consumed by garden beds anyway. The petitioner stated that they had and settled on this alternative as their best option.

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. There are three letters of support and two letters of opposition to this request.

2. It is zoned RA-1.

3. There is a living hedge along part of the fence line along Woodbridge Lane (east side).

4. The lot is wider than the average lot in the subdivision.

5. A gate is planned in the fence on Woodbridge Lane side.

6. The property is located at 4205 Partridge Lane and it is a corner lot.

7. The edge of the deck is 30 feet from the east property line as shown on the petitioner’s drawing.

8. The zoning restrictions are different for corner lots.

9. The proposal is to bring the fence flush with the front of the house.

10. They are choosing to build the fence in the side and rear yards only.

It is moved by Higgins and supported by Siemer to approve Petition No. 08-08 based on the findings of fact to allow a fence to exceed the height requirements in the side street yard setback at 4205 Partridge Lane based upon the findings of fact.

Higgins stated he is having trouble finding how they cannot use the property without the variance. He sees nothing unique about this property. There are lots of corner lots throughout the city. This is a larger than normal lot so they have no issues of the lot being too small.

Pnacek concurs with Mr. Higgins. He does not know that an extra foot of fence is going to solve their problem. They would come in a little bit closer and put in the shorter fence and still accomplish their objectives.

Steele said he can go along with the 4-1/2 foot fence, but he does have a problem with how much you can see through the fence. This neighborhood is very open. If the fence is too obscuring, it could perhaps do an injustice to other property owners.

Siemer concurs with what has been said. He thinks a 3-1/2 foot fence would keep children in the yard just as well as a 4-1/2 foot fence.

Green stated the ZBA has had cases such as this one in the past. There are very few fences in this part of town. He has some issues with supporting this variance request.

Higgins stated the hedge will grow higher and denser so this should provide an additional barrier for the children. The city does not regulate living growth height.

Voting on the motion:

Green: No

Higgins: No

Pnacek: No

Siemer: No

Steele: No

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

b. 08-09 – Kari McPhillips for an area/dimension variance to allow a home addition to encroach within the side yard setback at 2804 Dartmouth Drive.

Mr. Poprave showed an aerial photograph showing the property is on the corner of Dartmouth Drive and Cambridge. It is south of Dartmouth Drive and east of Cambridge Street. It backs up to Washington Woods Park and Washington Woods Senior Housing complex. The property is in RA-2, but backs up to RB on the south. There is RA-3 to the northeast and there is also some RB poking out between Ronan and Cambridge. There are several commercial businesses one street over, on South Saginaw Road. The home faces Cambridge Street. The minimum setback in RA-2 is eight feet and the sum of both sides has to equal 20 feet. The lot has 60 feet of frontage on Cambridge Street, 80 feet on Dartmouth Drive, 122.7 feet on the interior side, and 102.33 feet adjacent to Washington Woods Park. There is a side street yard, a front yard, an interior side yard, and a regular side yard. The petitioner’s fence currently encroaches into Washington Woods Park. They maintain this side yard as theirs, although it does belong to the City of Midland.

Mr. Poprave showed pictures of the home looking down several sides of the house. The Building Code requires that you maintain at least a 3-foot setback from the property line, unless you have a higher fire rating on the building.

Mr. Pnacek asked about the current zoning ordinance restrictions in relation to a deck. Mr. Poprave stated an uncovered deck could be within 10 feet of the property line.

Kari McPhillips, of 2804 Dartmouth Drive, addressed Mr. Poprave’s idea of asking them to move the deck to the other side of the house. If she were to move the addition over so it did not encroach into the setback, it would block the living room windows and would not tie into the roof line in the rear of the house. She has to work with the existing roof pitch. Also, if she were to move the addition over, it would not make sense to put the deck on the side of the house on a busy road. The petitioner stated this all started because they need more space. She has continued to maintain this property for the past 15 years. Addressing criteria (a), the setbacks do not allow her enough depth to add the addition she wishes to have. Criteria (b) will increase her property value and give them the space they need to live. Their other option is to move to a different home. Criteria (c), she stated the neighbors can build a larger addition but on her lot this is not allowed. Criteria (d) speaks about the uniqueness of the lot and her lot is an angled lot and the way the existing house is laid out on the lot.

Higgins asked if she would have a problem being three (3) feet back from the existing property line. The petitioner stated that she could live with 3 feet. She does have windows up on both the front and back of the house, as the living room goes straight through.

Pnacek asked if it would be possible, where the deck comes out right now, if she could shrink part of that deck without affecting the existing roof line. The petitioner stated that that is the existing living room and she would not like to block the view from her existing living room.

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 property is zoned RA-2 and is adjacent to RA-3, RB and RC.

2. It is an irregularly shaped, corner lot.

3. It backs up to Washington Woods Park.

4. The existing house meets all required setbacks.

5. One letter was received in support of this petition.

It is moved by Higgins and supported by Pnacek to approve Petition No. 08-09 based on the findings of fact to allow a home addition to encroach within the side yard setback at 2804 Dartmouth Drive in accordance with findings of fact, conditioned that the addition not be less than 3 feet from the property line, and that the fence and all accessory structures be removed prior to the start of construction.

Higgins stated the proposed addition is relatively small. The problem ultimately is the shape of the property. That addresses all the criteria, because she could put the addition on if it was a regularly shaped property.

Steele agrees with Mr. Higgins. It is all based upon the irregular lot size.

Pnacek agrees. He thinks the petitioner has shrunk this addition to as small as is feasible.

Steele stated the other side of this is the practicality that there could be a building within three feet on the other side of the property line.

Green stated that it is a strange piece of property and this is the common thread to all five of the criteria. He is in agreement with the removal of the fence prior to the issuance of the building permit.

Voting on the motion:

Green: Yes

Higgins: Yes

Pnacek: Yes

Siemer: Yes

Steele: Yes

The motion to approve the Petition 08-09 was approved 5-0.

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

None

5. OLD BUSINESS

None

6. NEW BUSINESS

None

7. DECISION SHEET SIGNATURES

1. 08-03 recorded
2. 08-06 review of findings of fact

8. ADJOURNMENT

Hearing no further business, the Chairman adjourned the meeting at 9:14 p.m.

Respectfully submitted,

Daryl Poprave, AICP, CFM

Deputy Planning Director