MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,
WHICH TOOK PLACE ON TUESDAY, JUNE 16, 2009
AT 6:30 P.M., IN COUNCIL CHAMBERS, CITY HALL,
1. ROLL CALL
PRESENT: Board Members - Green, Higgins, Holthof, Lichtenwald, and Steele
ABSENT: Board Members –
OTHERS PRESENT: Cindy Winland, Consulting Planner, Cheri King, Community Development Specialist, and 4 others.
2. APPROVAL OF MINUTES
It was moved by Steele and supported by Higgins to approve the minutes of the May 19, 2009 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. 09-05 – Joshua Barclay for an area dimension variance for a side yard setback at 810 East Chapel Lane Circle.
Background: Cindy Winland, Contract Planner for the City of Midland, presented the petition. The zoning map shows the existing land use is residential and is surrounded by Residential A-1. The future land use is low density residential, and it is the same throughout the subdivision.
The petitioner is seeking a zoning variance for a side yard setback. The Zoning Ordinance requires a minimum of 8’on each side and a total of 20’ in total. The applicant has an 8’ setback on the west side of the property, requiring that the east side setback is 12’.
The petitioner has proposed two options for consideration: Option A is a request to place a shed 4’ from the property line, which would require an 8’ variance. Ms. Winland showed a rendering of what a shed in this location might look like from the road. Option B is the same request, except that the shed would be 8’from the property line and the applicant would be asking for a 4’ variance.
Criteria for granting a variance: Winland reviewed the five criteria for determining if there is a practical difficulty and the variance merits approval.
Criteria A states that strict compliance with restrictions governing area setback will unreasonably deny the petitioner the ability to use his property for a permitted purpose. Mr. Barclay stated it would not be feasible for him to move the shed closer to the house. Option A would allow him to place it 4’ from the property and Option B would allow him to place it 8’from the property line. Staff notes that it is possible to place the shed at the required 12’ setback if the shed is moved back (south) on the property.
Criteria B requires that the variance provide justice to the petitioner as well as the neighborhood. Staff feels that the shed could be moved further back and still serve the purpose of storing outdoor equipment.
Criteria C measures whether this is the minimum variance needed to achieve the purpose. Staff notes that the shed can be placed legally in the rear yard without a variance.
Criteria D examines if the property is unique in some way, preventing the property owner from using his property. The petitioner stated he is more concerned about the visibility for his neighbors. The purpose of the shed is to clean up the yard and have a place to store equipment inside. The neighborhood has similar other structures that are used for storage of outdoor equipment. There is no shed there now. Staff noted that there are many lots in the area that are of similar size, similar configuration and have similar sized houses.
Criteria E requires that the problem is not self created but is precipitated by strict compliance with the ordinance. Staff noted that since the shed does not exist now, the problem is self created.
Petitioner’s response: Joshua Barclay, 810 East Chapel Lane Circle, stated that his neighborhood has been there for quite some time. He is trying to keep his yard cleaned and organized to keep the children’s play equipment out of the sight of his neighbors. There is room to put a shed further in the back yard and still meet the requirements of the ordinance and he thinks it will look really bad. If the doors to his fence are open, as well as the doors to the shed, you will be looking right into the shed. If he puts the shed on the other side, his neighbors there will look right at the shed. Where he wants to put it, there is only one neighbor that will be able to see the shed.
Mr. Higgins asked about the location of the gate in the fence. Mr. Barclay stated the shed is 8’ x 12’. Mr. Higgins stated he still has 12’ between the shed and the house. There are two large trees in the corners of the lot.
Mr. Steele asked how many feet there are between the playscape and the fence. Mr. Barclay stated 8 or 9 feet as there is a trampoline in that area, also. If the shed is in the corner, the doors to the shed will face the house and none of the neighbors would see it at all.
Mr. Green stated the entire property is fenced in so the issue of neighbors being able to see the shed doesn’t make sense. Mr. Barclay stated that when the door of the fence is open, the neighbors would be able to see into his shed which would be an eyesore for them. Mr. Steele noted that the shed could become an eyesore if the fence was removed in the future.
John Coates, 713 Chapel Lane Circle, stated he is not so much in opposition, but has general questions about locating sheds. He asked if a variance is required for all sheds or just for some sheds. Mr. Green stated that sheds, in general, do not need a variance. The ordinance specifies setbacks that must be met and, if property owners want to place sheds in the setback areas, they must obtain a variance. Mr. Holthof explained that Mr. Barclay wants to place his shed in the side yard, rather than the rear yard. In the rear yard, a shed can be located three feet off the property line.
No one else spoke either in favor of or in opposition to this request. One written comment was received from a neighbor, Mr. D. McIntyre, of 712 Chapel Lane Circle, in favor of allowing the shed 8’ from the property line.
The Chairman closed the public hearing and directed the ZBA to enter into findings of fact.
Findings of Fact:
1. The zoning district is RA-1.
2. The property is located on a dead-end circle street.
3. There is a board fence from the garage around the back of the property.
4. There was one letter in favor of the 8’ option.
5. The house is located 8’ from the west property line so the yard requirement on the east side is 12’.
6. The garage is located 33’from the lot line.
7. The house is located 37’from the lot line.
8. A gate is located near the garage on the street side.
9. The fence on the side yard is 1’ from the property line on the east side, according to the petitioner.
10. The petitioner stated he has two trees obstructing the corners of the rear yard so he cannot place the shed in those locations.
11. There is 30’ from the back of the house to the rear yard setback line.
12. The Board is acting on petitioner’s Option B.
It was moved by Higgins and supported by Lichtenwald to approve Petition No. 09-05 based on the findings of fact for an area/dimension variance at 810 East Chapel Lane Circle in accordance with Option B (the 8’ option).
Mr. Higgins stated he has trouble seeing that strict compliance would render conformity unnecessarily burdensome. He does not feel criteria #1 is met. Criteria C states this is the minimum variance needed and Mr. Higgins feels he does have other options. There is nothing unique about this property. He cannot get by at least four of the criteria.
Mr. Holthof stated he concurs with Mr. Higgins, especially with the criteria referring to strict compliance. He does not see any practical difficulty except the property owner’s preference.
Mr. Steele stated that he is also in agreement. Most houses in this neighborhood do not have fences. If that fence were ever taken down, the shed would be an eyesore.
Mr. Lichtenwald stated that the petitioner’s only concern was having the doors to the shed open at the same time the gate to the fence is open. He also cannot meet any of the criteria.
Mr. Green stated the Zoning Board is here to enforce the code, the petitioner has options available to him and he also cannot get by the criteria.
Voting on the motion.
The motion to approve Petition 09-05 was denied by a vote of 0-5.
4. PUBLIC COMMENTS (not related to items on the agenda)
5. OLD BUSINESS
6. NEW BUSINESS
7. DECISION SHEET SIGNATURES
Hearing no further business, the Chairman adjourned the meeting at 7:21 p.m.