MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

WHICH TOOK PLACE ON TUESDAY, OCTOBER 21, 2008

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

MIDLAND, MICHIGAN

1. ROLL CALL

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

ABSENT: Board Members – None

OTHERS PRESENT: Daryl Poprave, Deputy Planning Director, Cheri King, Community Development Specialist, and 6 others.

2. APPROVAL OF MINUTES

It was moved by Higgins and supported by Steele to approve the minutes of the August 19, 2008 meeting as presented. 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 Zoning Ordinance criteria. Mr. Green reinforced that the variance goes with the property and not with the property owner.

a. No. 08-11 – Sign Image on behalf of Midland Community Center for an area/ dimension variance for a ground sign at 2205 Jefferson Avenue.

Mr. Poprave showed an aerial photograph of the subject property. It is located east of Jefferson, south of E. Nelson, west of Collins, and it borders Central Park, and Haley Street to the south. The zoning map shows the property is zoned Community. The petitioner is requesting a sign on the corner of Jefferson and Haley Street. It is surrounded by residential development both across Jefferson Avenue and Haley Street. The LED portion of the sign is already in place, with the reader board. If approved, this variance will allow them to erect one 44 sq. ft. sign. The ordinance allows a maximum of 32 sq. ft. of ground signage. Brick work surrounds the reader board that displays graphic images. The extra area they are asking for is the top of the sign that states “Community Center Campus”. There has been some interest that, since this is in a residential area, when the Community Center is not open the sign is not on or it is not burning so brightly. Mr. Higgins stated that when he did his site inspection, there is another sign from the original Community Center; will this sign be coming down? Mr. Poprave suggested Mr. Higgins ask the petitioner. Under the Zoning Ordinance requirements, this sign must be removed. They are not allowed two signs because they do not have sufficient street frontage and two signs are not permitted in the Community zoning district. Mr. Poprave stated the brick work does not count in the sign area – just the sign itself.

Bill Lamb, represents Sign Image, 7586 Milky Road, Freeland, Michigan. He stated that what they are trying to do is to add the additional 12 sq. ft. to place the brand of the “Greater Midland Community Centers, Inc.”. They need a sign that is large enough to place logos, pictures of people, and text. They want full color and they want to be able to display products, animation, and people on their sign. The 32 sq. ft. sign will not work if they want to brand the “Greater Midland Community Centers, Inc.” and the “Midland Community Center”. Having the smaller sign limits the message that they can place on their sign. If they have to put their name on the changeable sign, their name would only be displayed when that rotation came around. At this point, they cannot cut down the size of the sign. The monument base is what it is. It will only make a difference whether or not they can add the extra portion of the sign across the top.

Green stated the Board must see that all five of the criteria are met. The petitioner stated that for it to be functionally effective, they must have the larger sign due to the viewing distance and the angles of the two intersecting streets. They are also taking into consideration the location of the Community Center in relation to the entire campus. He believes that both fixed signs would not be readable if they had to go on only one sign. The petitioner stated it would do justice both to the Community Center and to the community to have the extra signage. This extra signage will not impede any of the surrounding property owners. He thinks the larger sign will benefit the surrounding property owners because it will make it easier to locate the Community Center.

Holthof asked how the 32 sq. ft. allowed is not sufficient. The petitioner stated 32 sq. ft. does not allow photos of animation to be seen on a smaller sign. Holthof stated the speed limit there is 25 mph. We have other signs in 40 mph speed zones that have complied with the ordinance. Perhaps they cannot advertise everything they would like, however, he feels that 32 sq. ft. certainly allows room for advertising activities in a 25 mph speed zone. The petitioner stated they feel it needs at least three lines of text to advertise activities and they would like to have videos and photographs also incorporated into their sign text. Holthof stated he cannot yet see how this is not self-created.

Steele asked if the additional 12 feet they are asking for will be illuminated or not. The petitioner stated that portion will be illuminated at all times by fluorescent lights. Higgins asked if the sign where George Street previously was will be removed. The petitioner stated that, to his knowledge, this sign will be removed. The reader board will only be visible on one side. If you are coming south on Jefferson Avenue, you will not be able to read this sign. This is a significant fact that has not yet been discussed.

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 Community District.

2. There is residential property adjacent to the Community Center.

3. Directly opposite the ground sign at the Haley and Jefferson intersection is a commercial store.

4. The frontage of the property is 1,028 feet on Jefferson Avenue.

5. The speed limit on Jefferson is 25 mph.

6. There is one letter in support of the additional signage.

7. There is high-density Residential zoning directly across the street from the Community Center.

It was moved by Higgins and supported by Holthof to approve Petition No. 08-11 based on the findings of fact for a sign variance at 2205 Jefferson Avenue, with the following conditions (1) that the LED portion of the sign is turned off when the Community Center is not open for business or special events, (2) that the sign remains at its current location and orientation on this property, and (3) that the current ground sign on the former George Street is removed.

Higgins is having a problem with them meeting two of the five criteria. They want signage to identify the corporate identity and the site location. The petitioner stated they could meet the 32 sq. ft. criteria. Higgins sees nothing unique about this property, nor any reason why they cannot meet the current ordinance requirements.

Steele agreed with Higgins on every point.

Holthof stated that he does not see how this does any justice to any of the other property owners. He stated that the city sees that 32 sq. ft. is sufficient for other property owners and he does not see how they need more sign area.

Lichtenwald stated he has a problem with criteria a, c, and d.

Green stated that he is considering the surrounding neighbors. Considering the criteria the Board must address, he cannot vote in favor of this request.

Voting on motion:

Green: No

Higgins: No

Holthof: No

Lichtenwald: No

Steele: No

The motion to approve Petition 08-11 was denied by a vote of 0-5.

b. No. 08-13 – Wolgast Corporation, on behalf of Bierlein Demolition for a area/dimension variance for a side street yard setback reduction at 1912 Bay City Road to allow a new building addition.

An aerial photograph shows the subject property is located south of Bay City Road and east of Suave Street. The surrounding property is owned by the petitioner, except for a house just to the south of the subject property. The property is zoned Regional Commercial. The surrounding property is also zoned Regional Commercial. There is Industrial A zoning across Bay City Road to the north and further south of this property. There are a couple of entry drives on the south side of Bay City Road. There is a 5,120 sq. ft. addition proposed for the west side of this property. The addition would be 64 feet in depth and 80 feet in length, along the property line. There is a 25 foot required side street yard setback. This requested variance represents a 69% decrease in the setback requirement. The addition will actually be 62 feet 7 inches, due to the dimensions shown on their submitted site plan being incorrect. The adjacent properties to the south and east are all under the same ownership, but they have separate tax codes, according to the City Assessor. The total property area constitutes approximately 23 acres.

Mr. Poprave stated he did a lot of research on this petition. Corrosion Fluid Corporation is built across Suave Street at 1850 Bay City Road. They are a legal non-conforming structure which was built in June of 1977. At that time there was no street side yard setback required in a Business “C” commercial district. In 2005, “Business C” became “Regional Commercial”. Prior to 2005 there was several “Business” zoning districts. In criteria “D”, the petitioner talked about the fact that he was not aware of the requirement for a street side yard setback in a commercial zoning district but in fact that requirement had existed since August of 1977. Staff recommends denial of this variance request. The property owner still has plenty of room to build without this variance. The Corrosion Fluid Corporation building was built before the Zoning Ordinance side yard setback regulations so it was built right to the property line. The existing building’s non-conforming status does not set a precedent. We do not want to encourage more non-conforming properties in the community.

The petitioner, Patrick Wurtzel, 4949 Freeland Road, Freeland, Michigan of Bierlein Demolition. They built the existing structure in 1992. The existing building houses exclusively hydraulic cranes for The Dow Chemical Company and Hemlock Semi-Conductor. It is necessary that these cranes be able to be disassembled piece by piece for maintenance purposes. They currently have five bays and they want to add an additional three bays in order to do additional maintenance work. The petitioner stated they have a unique opportunity here, in that Suave Street is an unpaved road.

Higgins asked why all eight bays have to be in the same building. The petitioner stated that once a crane is taken apart, they cannot move it and they do different activities in each bay.

Lichtenwald stated he only sees two bays on the drawing presented. The petitioner stated it is about 2-3/4 bays. There are two bays with doors and then an additional ¾ bay for storage. As a part of the renovation of this facility, the radio tower is being removed.

Green asked the petitioner to review the five criteria. The petitioner stated they are using this area for hydraulic crane maintenance and they need the additional space if they plan to stay in this facility. They cannot continue to do the maintenance in the smaller building they have at the present time. Their intent is to put in an overhead crane assembly to move some of these parts from one bay to another. The variance will allow them to continue to use this building. It will not affect anyone down Suave Street. This is the minimum amount of variance they need to continue doing work at this facility. When the existing building was built in 1992, it was always their thought that they would be able to expand into the existing vacant area. This was not the case once the new Zoning Ordinance went into effect.

Steele asked about the house to the south on Suave Street. The petitioner stated they have an informal agreement with the property owner that, once he is ready to sell his property, they will purchase it.

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

Tom Pommerville, 2188 Ashby Road, spoke in favor of this variance and would like to see the business remain in Midland.

Robert E. Miller, 1077 E. Sanford Road, owns 323 Suave Street, approximately an acre of property there. He does not see any problem except roof water that may come off the building. The road is gravel and is wet. His only concern is the roof water. So long as he can get his trucks in and out, he does not care.

No one else spoke 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 Regional Commercial.

2. Two letters were received in favor of this request.

3. Two individuals spoke in favor of this request.

4. The setback requirements are the same for RC and Industrial A and B.

5. Suave Street is a gravel road, with a 45 foot right of way width and there are commercial facilities adjacent to this property, except the one residential property to the south.

6. The proposed addition would create a 7 foot 9 inch setback from the property line where a 25’ setback is required.

7. The addition would be a 5,007 sq. ft. building instead of the 5,120 sq. ft. per the staff report.

8. According to the petitioner, the size of this building is required to properly maintain the number of hydraulic cranes that they own.

It is moved by Higgins and supported by Holthof to approve Petition No. 08-13 based on the findings of fact for a 17 foot 3 inch side street yard reduction variance at 1912 Bay City Road.

Holthof stated that he does not see a problem with this. They need the additional space to keep doing their permitted purpose. They are nearly the only property owner on this street. The variance request is the minimum needed to keep doing business at this location. It will not affect other property owners in this area. There are 23 acres and the building is placed on the property in such a way that the only way to expand is to the west. There are a couple different retention areas on the existing property. He finds that this property is unique in that there is really no where else for them to build this addition. Strict compliance with the Zoning Ordinance does not look at the uniqueness of this property. The site is 23 acres, on a gravel road, and the majority of the east side of the road is under the same ownership.

Lichtenwald stated he can agree mostly with Holthof. However, he does not see the space for three bays. He also has a problem getting around the self-created criteria.

Steele agrees with Holthof. With the amount of money they will be investing, you do not invest that kind of money unless you really need it.

Higgins agrees with Holthof on the first three criteria. However, he is having trouble how to meet “e” – he cannot see how this is not self-created, in fact, the petitioner admitted that it was. It would seem that, if they needed a small addition, they could build something a little smaller and still be able to meet the 25 foot side yard. Council has clearly stated they want to see some property between the structure and the street.

Green stated that the property is unique. In 1992, there may have been something that should not have been permitted at this location.

Voting on motion:

Green: No

Higgins: No

Holthof: Yes

Lichtenwald: No

Steele: Yes

The motion to approve the Petition 08-13 was denied by a vote of 2-3.

c. No. 08-14 – Greg Garl of LPL Financial Services, for an area/dimension variance for a ground sign setback reduction for a new sign at 5800 Eastman Avenue.

Mr. Poprave stated that the aerial photograph shows this property is located east of Eastman Avenue and north of Denver. Just to the south is Wolverine Bank and they go all the way to Dilloway Drive on that side of the street. This property is zoned Office Service and is across the street from RA-1. There is a church directly across the street. This entire side of Eastman Avenue is zoned Office Service from Dilloway to Wackerly Street. There was a recent rezoning on the corner from RA-1 to OS. If approved, this variance will allow one, 12 sq. ft. ground sign at 5800 Eastman Avenue. There is a utility box that might impair some visibility of the sign. They are not asking for a larger sign, but that it can be closer to the property line by two feet. Because of the configuration of this parcel, they are asking to be allowed to place the sign closer to the street than allowed. There are several other signs to the north that are within the two feet from the sidewalk frame. This is because the five foot setback provision did not exist prior to 2005. They are not asking for any additional area for their sign. Staff stated that signs usually need to be set back so when people are pulling out onto the street, there is visibility of oncoming traffic. This sign will be set pretty far back from the intersection and should not pose a problem.

Steele asked how large the sign could be. Staff stated it can be a maximum of 12 sq. ft. in Office Service zoning. The height looks like it will be five feet off the ground and it is allowed to be five feet in this zoning district. The sign will meet all of the requirements of the Zoning Ordinance except they want it two feet closer to the street than permitted. This property was built in 1982. This property is a corner lot so they actually could have a second ground sign. The side street is Denver Street, which is also a private street. Businesses in this area can also have wall signs but with the 45 mph speed limit, they would be difficult to see.

Greg Garl, 2713 Mt. Vernon, Midland, stated the tenants have come together to design a sign that would meet all of their needs. They would like to put their sign out near the street where several other signs are located. They would be prevented from using the property for a permitted purpose without the sign because of the speed people travel on Eastman Avenue. The side area on Denver Street is continually piled up with snow so this would not work for them. The landmark they can identify with is Wolverine Bank. The justice would be to allow them to have a sign like everyone else on the street. There is a sign on the building but that is parallel to the road and difficult to see at 45 mph. The variance requested is the minimum amount needed to achieve their purpose. There is no other area to place the sign that it could be seen. Some unique aspects of the property are that the parking lot is already taking up the entire property frontage on Eastman Avenue. There is no space on either edge of the property that they could place a sign. The petitioner does not believe anything was deliberately done by prior property owners to create this situation. The road used to be only four lanes wide.

Holthof asked how many feet back from the intersection will the sign be? The petitioner stated it would be about 30 feet. There are five tenants in the building. The fifth tenant does not require signage and chose not to participate.

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 Office Service.

2. The speed on Eastman Avenue is 45 mph.

3. The parking lot is 7.5 feet from the edge of the property line in the area they want to place the sign.

4. The property was built in 1982.

5. This requirement for the 5 foot setback is new to the 2005 Zoning Ordinance.

6. It is a corner lot on Eastman Avenue and Denver Street.

7. Denver is a private street and only partially paved.

8. There were no communications.

9. The sign would be about 30 feet north of the south property line.

It is moved by Steele and supported by Lichtenwald to approve Petition No. 08-14 based on the findings of fact for a sign variance at 5800 Eastman Avenue.

Higgins stated the burdensome part of this is that the parking lot is so close to the property line that it does not leave room for the sign. There seems to be no other way to do it. The uniqueness is that this property was built back in 1982, prior to the current Zoning Ordinance. Criteria “e” does not apply as this property was developed prior to the current Zoning Ordinance.

Holthof stated he concurs with Higgins. There is no place to put a sign so it is definitely not self-created.

Steele and Lichtenwald agree. Green is also in agreement.

Voting on motion:

Green: Yes

Higgins: Yes

Holthof: Yes

Lichtenwald: Yes

Steele: Yes

The motion to approve the Petition 08-14 was approved by a vote of 5-0.

d. No. 08-15 – Marookeh, Dolores, and James Nahikian on behalf of Niche Properties, LLC, for an area/dimension variance for a detached accessory building addition to exceed maximum square footage requirements at 1417 Springfield Drive.

Mr. Poprave stated that this property is located north of Patrick, east of Waldo Avenue. There is a large apartment complex to the south and east. There are multi-unit apartments in the adjoining property. It is adjacent to Davenport University. This variance will allow an addition of 800 sq. ft. addition onto an already existing building. There are already two additional storage buildings on the site. Section 3.03(b) states detached accessory buildings shall not have greater than two acres of land. This site has 1.74 acres of land. There currently exist three detached storage buildings. All the buildings comply with the current setbacks. The building, even with the proposed expansion, will still meet the setback requirements. Attachment No. 1 shows that the existing accessory buildings meet the current setback requirements. The buildings shall not exceed 16 feet in height. The number of accessory buildings only applies to one and two family residential dwellings. They are allowed to have the additional storage building. The new addition will increase the size of the accessory structure by 47%. These buildings have doors on them. They are actually garages that have been made into storage units for the tenants. These property owners purchased the property from its prior owners. They are relatively small units so they do not have a lot of storage space.

Lichtenwald asked about the separation of the buildings. Staff stated the city requires separation of six feet between the buildings. One obstacle was that, if they add this on to an existing building, you have to consider fire ratings and sprinkling systems. This would add significant cost to the existing buildings.

Mr. Nahikian, 3140 Riverview, Bay City, Michigan, represented the petitioner. This proposed building would be an out-building. There are a lot of grills lying around and he would like to see the area cleaned up. Currently, there is no where for the owners to store their equipment so they transport it off site to another storage area. Criteria “a”, these units are for tenant storage and it will clean up the area. It is a hardship for the owners to transport their equipment every time they need it. Criteria “b”, presently this area is an eye-sore when driving by. Especially in the winter time with snow blowers, this is not the appearance they want to portray. They subject themselves to vandalism. They have worked with the city to keep everything as close to the ordinance as possible. There are no basements, no attics and no storage in the apartments. They are small apartments. The property is unique because it is less than two acres of property and because it is multi-family. They did not think it would be as attractive to put the storage building toward the front of the property toward the road. They want too keep it behind the buildings. The further back area is wooded and you would have to carve out an area to place the building. There is no other logical solution or other place to put the storage facility so they feel they have to have the variance.

Staff stated the storage building could not be in the front yard so it could not go in the northeast corner of the property anyway. Higgins asked how many parking places they have there. The petitioner stated he did not know. They have never counted them. However, the parking lot is never full. The existing building would go back to the tenants for storage and the new building would be used by the property owners. When he thinks of all the tools and equipment they have to store inside, there would not be room in a smaller structure.

The Chairman asked if there was anyone present who wished to speak in support of this petition.

Jason Webster, 121 Roselyn Drive, Bay City, works for Mr. Nahikian. The extra space will really help them out with storage for their tools on site. The parking lot is quite large and he has never seen it full. The extra six feet would provide additional indoor storage. If it were outside, it would just be an extra patch of grass or something.

No one else spoke 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 Residential B.

2. It is located on 1.74 acres.

3. The ground floor of the apartments is 4632 sq. ft.

4. The total storage area is 1.

5. One person spoke in support in the audience.

6. There were no written communications.

It is moved by Steele and supported by Lichtenwald to approve Petition No. 08-15 based on the findings of fact for a variance to allow a 1,127 square foot detached accessory building at 1417 Springfield Drive.

Holthof stated strict compliance lends itself more to the tenants that use the property. Tenants need more storage area on the site. The applicant has done a good job of trying to figure out how to place this on the property in the least obtrusive way, taking into consideration the location of the dumpster. It is the minimum variance required to meet their needs. The uniqueness of the property is that it is only 1.74 acres, where today, it would have to be a minimum of a two acre parcel so it is unique in how it is being utilized today. The current Zoning Ordinance would require a much larger land footprint to have the same use as they have today.

Steele agrees with Holthof and he does believe it would do substantial justice to the applicant.

Lichtenwald stated he is not sure all of the criteria are met. Not all of the parking spaces are utilized. With a little more planning, he can have his 800 sq. ft. and still have it a little further from the other storage buildings.

Higgins stated that, because they do not currently use all of the parking spaces, he thinks they could take some of that area.

Green stated that he has a problem with substantial justice to the owner and the surrounding property owners.

Holthof stated that no one seems to know how many parking spaces they currently have. The petitioner does not know. Perhaps this should be tabled or clarified before the Board makes a decision.

Lichtenwald stated that he thinks they would lose two parking spaces at the most if they rotated the building.

Voting on motion:

Green: Yes

Higgins: No

Holthof: Yes

Lichtenwald: No

Steele: Yes

The motion to approve the Petition 08-15 was approved by a vote of 3-2.

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

None

5. OLD BUSINESS

None

6. NEW BUSINESS

a. 2008/09 Annual Zoning Ordinance Clean-up

Staff explains that the ZBA can provide suggestions for the annual “clean-up” of the zoning ordinance to staff via e-mail by November 1^st .

b. 2009 Planning Commission/ZBA training session to be held in January or early February.

7. DECISION SHEET SIGNATURES

1. 08-07 and 08-09 recorded

8. ADJOURNMENT

Hearing no further business, the Chairman adjourned the meeting at 9:23 p.m.

Respectfully submitted,

Daryl Poprave, AICP, CFM

Deputy Director of Planning & Community Development