1.      ROLL CALL

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

ABSENT:       Board Members – None

OTHERS PRESENT:    Daryl Poprave, Deputy Planning Director, Debbie Marquardt, Technical Secretary, and 3 others.




It was moved by Higgins and supported by Steele to approve the minutes of the October 21, 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 Zoning Ordinance criteria.  Mr. Green reinforced that the variance goes with the property and not with the property owner.


a.      No. 08-16 – Three Rivers Corporation on behalf of MBK Development, LLC for an area/dimension variance for a building and parking lot setback encroachments at 102, 108, 110 and 114 W. Buttles Street and 416 E. Indian Street.


Daryl Poprave introduced the petition.  All the parcels are under the control of the property owner.  This past summer this property was rezoned from Office Service to Downtown zoning.  The Master Plan supported the expansion into the zoning district.  There are 102, 108 and 114 W Buttles Street and 416 E Indian Street.  This property has not yet been combined into one parcel.  The request is that this building be built in the side yard setbacks.  The normal setbacks are 5 foot front yard and a 25 feet side street yard.  The petitioner will be constructing 51 parking spaces and the variance affects 26 spaces.  The uncovered parking space has to be 10 feet off the property line.  The other parking will have some screening.  There should be equal screening on both the covered and uncovered parking.  This will house two floors of condominium units and a first floor restaurant.   The Downtown height requirements were changed to 76 feet from 28 feet in April of 2008.


Higgins asked about the requirements stating that a parking garage can be built along the property line.  Staff stated that the Zoning Ordinance is grouping everything in Commercial class.  It states that it has to be 10 feet away from the building.


Steele asked if it should be three feet but maybe it should be 10 feet from the building.  Higgins asked about what the Schedule of Regulations states about setbacks for Downtown. 


Higgins stated that Section 3 states that the rear setback is zero so that accessory building can be on the lot line.  There is another zoning district called Downtown Overlay and he wanted to know if the petitioner could have requested that district.


Daryl stated that the Downtown Overlay isn’t a zoning district but covers a certain defined area in the Downtown District. 


Randy Sherman of Three Rivers Corporation, 1515 Riverchase, Midland, MI states that they are presented with a few challenges being a multi-sided L shaped parcel and what is the most logical layout of the property.  The variance needed is a side street setback and a parking setback.  Part of the design process is in relationship to the ingress and egress to the property.  They would like to eliminate the exciting curb cuts on Buttles Street and then on Gordon Street they would reduce the curb cuts to two.  This piece is made up of four existing lots, which are small with an average dimension of 60 feet in width by 120 feet in depth. 


The petitioner is proposing to screen and fence all sides of the parking lot and extend that to the 8 vehicle garages with overhead doors.  The parking on either side of the garages is intended to be car ports.  The first floor is retail, level two and three are residential condos with seven units per floor.  What they are trying to do with the detail is to create a mix of square footages.  The object is to appeal to a broader range of the housing market with a variance of square footage and make this project more viable to sell or lease out those spaces. There will be a covered outdoor seating area between the retail spaces.  They can’t get a retail space with a lobby and a kitchen to support a café without requesting the setback and push out the retail level.  They notched the corners of the building to be sure car and pedestrian traffic will have the open site line at the corners of the property. 


With 14 residential units they would like to have 14 covered parking spaces.  The Zoning Ordinance doesn’t require them to put parking on the property but it is an island and it is a challenge to get there by foot so they would like to provide as much parking as possible on the site. 


The overall project is going to be upscale.  This is important for the downtown area.  At the Board’s prompting, the petitioner next paraphrased the review criteria. 


The criteria for approval item A is retail without parking is not a good thing.  Item B is saying that they are taking the parking off the streets and provide more parking on their parcel.  They will need both residential and retail parking.  Item C is one of their primary objectives to increase visibility to the side street.  Item D essentially is with a downtown development they are striving for density for the project to be viable to stretch the building envelope to the property lines.  Item E is that the current Zoning Ordinance is kind of contrite to provide development in a Downtown District on a small lot for parking and pedestrian circulation.


Holthof asked about the adjacent properties and if any effort has been made to approach them for purchase.  The petitioner stated that they have but sometimes logic doesn’t apply.


Steele asked about the parking and the types of businesses.  Have they done any analysis to see how full the parking will be?  The petitioner state that what they are looking at is four retail customers and six or seven parking spaces per space.  They have a little bit more than that.  They are smaller places so it would be quicker visits. 


Higgins asked about Item D and it would appear that there may be more developments occur and that other property owners would want to rezone to Downtown District.  Why is this property unique compared to other properties in the area?


In response the petitioner stated that this particular property is made up of small parcels.  Others may have a benefit of having a larger piece of land.  There are so many variables to consider as the land is being offered and acquired.  They went through a number of variables before this plan.  It is hard to predict how someone would come before the board.


Higgins stated that the lot has some depth to it if they built the building with a 25 feet setback?  The petitioner stated that if they followed the setback, they would have to remove 900 square feet per end of the building per floor, 1800 per end times two ends is 3600 square feet or four units. 


Holthof asked if they would scale back maybe they are over building for what they have and build the first phase and they try to acquire the additional property.  All of these lots have some of the same constraints.  That doesn’t make the block unique. 


The petitioner stated they started planning the project with the entire block but it didn’t work out.  Construction is going to take place in a relatively confined area.  They talked about phasing the project then when you come back you have less land and to try and keep operational and keep your tenants happy so they would like to do the entire building at the same time.


Steele asked about the building being right on the street with less street frontage and maybe used the setbacks as parking.  The petitioner stated that they looked at every possible configuration.  When you have a lot of this size, you have to look at it as efficiently as possible.  The most efficient way to park is the way they have it planned.


Green asked why 14 apartments?  The petitioner stated client had access of a market study for this type of housing and the size of the units and they were advised to have a reasonable mix within the building. 


Lichtenwald asked if they considered three floors of residential with retail on the first floor.  The petitioner responded that if they were to go four or five stories, the type of materials, equipment and scaffolding with that type of approach would be too expensive to do.


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 locations are 102, 108, 110, 114 W. Buttles Street and 416 E. Indian Street.

2.      Recently rezoned Downtown with the northwest portion zoned Office Service (416 East Indian parcel).

3.      Existing fence on the adjacent property.

4.      According to the petitioner there will only be two entrances to the property.

5.      Speed limit is 35 on E. Indian and W. Buttles Street.

6.      Speed limit is 25 mph on Gordon and Ashman being 30.

7.      One letter of support was received and no one spoke in favor or against at the meeting.

8.      Petitioner is providing off street parking though none is required by ordinance.

9.      The proposed building will be 35,200 sq. ft. in size.

10.  Parking on the east side of Gordon Street.

11.  Encroachment of the east and west side of the building is 20 feet.

12.  Petitioner has indicated that this is the minimize building size to be economically viable.

13.  Petitioner stated that they considered purchasing other parcels in that block but it was not financially feasible to acquirer them.

14.  This would be a residential and commercial “mixed use” development.


Higgins suggested that the variances request be split into “a” for the building setbacks and “b” for the parking setbacks.  The Board was in general agreement to proceed in this manner.


      It was moved by Steele and supported by Lichtenwald to approve Petition No. 08-16a based on the findings of fact for an area/dimension variance at 102, 108, 110 and 114 W. Buttles Street and 416 E. Indian for a building side street yard setback reduction of 20 feet (from 25 ft. to 5 ft.).


      Lichtenwald stated that this was esthetically pleasing development but he has issues with the variance meeting any of the criteria.  He feels it is a unique proposal but not the property is not unique.  The minimum request for the variance is not met.  He doesn’t see a fourth floor being that much more expensive. 


      Holthof concurs with what Tim has stated.  The uniqueness of the property is self- created.  Maybe the petitioner should approach the city to rewrite that portion of the Zoning Ordinance.  They don’t want to be put in a position and have approve more spot variances.


      Higgins also wrestled with the criteria and the building is very well done.  He sees nothing unique about this project.  He feels that the Zoning Ordinance needs to be changed by legislative means instead of variance after variance coming to the board.


      Steele asked if someone is trying to obtain land does that construe uniqueness to that parcel or does it say that that parcel is not unique?  If the market is setting a cost for that property, that is forcing a uniqueness to this lot.


      Green stated that should they come back to them each time or would it be better to get the Zoning Ordinance changed. 


      Voting on the motion.

      Green  yes

      Higgins  no

      Holthof  no

      Lichtenwald  no

      Steele  yes


      The motion to approve Petition 08-16a was denied by a vote of 2-3. 


      It was moved by Higgins and supported by Holthof to approve Petition No. 08-16b based on the findings of fact for an area/dimension variance at 102, 108, 110 and 114 West Buttles Street and 416 East Indian Street for a parking lot setback reduction of 9 feet with the condition that screening must be required on all sides of the parking according to the Zoning Ordinance requirements.


      Higgins feels different about this because of the narrowness and it is not possible to fit that parking lot in unless they reduce the setback requirements.  All the criteria are met for this motion.


      Lichtenwald agrees with what Higgins was saying and doesn’t have a concern with this part of the motion.  There really aren’t other options.


      Holthof struggles that the adjacent property is zoned Office Service.  Having the parking so tight to the adjacent owner and it is being created by the applicant.


      Green stated that the criteria is unique.  He agrees with the parking issue.  He doesn’t feel that they should have separated the issues. 


            Voting on motion:

            Green:  yes

            Higgins: yes

            Holthof:  no

            Lichtenwald:  yes

            Steele:  yes


The motion to approve Petition 08-16b was approved by a vote of 4-1.


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










Reminder that the Planning Department is going to do an annually training session on January 31, 2009 starting at 8:30 a.m. until about 1:00 p.m at the H Hotel.  They will have a separate breakout session around 11:00 a.m. and talking as a Zoning Board of Appeals with a consultant.  In the morning they will have a couple of joint sessions with the Planning Commission.


      Mr. Palin wrote a nice piece in Midland Issues about last months meeting.




  1. 08-14 and 08-15, review Findings of Fact




Hearing no further business, the Chairman adjourned the meeting at 8:06 p.m.



Respectfully submitted,

Daryl Poprave, AICP, CFM

Deputy Director of Planning & Community Development