MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,
WHICH TOOK PLACE ON TUESDAY, JULY 21, 2009
AT 6:30 P.M., IN COUNCIL CHAMBERS, CITY HALL,
1. ROLL CALL
PRESENT: Board Members - Green, Higgins, Lichtenwald, Siemer and Steele
ABSENT: Board Members – Holthof
OTHERS PRESENT: Cindy Winland, Consulting Planner, Cheri King, Community Development Specialist, and Randy Frank, applicant.
2. APPROVAL OF MINUTES
It was moved by Higgins and supported by Siemer to approve the minutes of the June 16, 2009 meeting as presented. Motion was unanimously approved.
3. ELECTION OF OFFICER
It was moved by Higgins, seconded by Steele, to elect Roy Green as Chairman. Motion passed unanimously.
It was moved by Steele, seconded by Lichtenwald, to elect Jack Higgins as Vice Chairman. Motion passed unanimously.
4. 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. 09-06 – Randall Frank for an area-dimension variance for a fence height at 1298 West Sugnet Road.
Background: Cindy Winland showed an aerial photograph of the subject property. It is located between Eastman Avenue and Saginaw Road, near the Country Club Golf Course across the street. The property is zoned RA-1, as is all the surrounding property. The future land use shows this property as low-density residential. The existing land use is also single-family residential. The golf course is private recreation. This is a request to vary the maximum height of a fence permitted in the front yard. This is quite a large lot. The petitioner is requesting to place a five foot high fence twenty-five feet back from the property line. The Zoning Ordinance permits a 3-1/2 foot high fence less than 30 feet back from the property line.
Criteria for granting a variance:
(1) Is strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other non-use matters, will unreasonably prevent the owner from using the property for a permitted purpose?
(2) The variance will do substantial justice to the applicant as well as to other property owners.
(3) The variance requested is the minimum variance to provide substantial relief to the applicant and/or be consistent with justice to other property owners.
(4) The need for the variance is due to the unique characteristics of the property not generally applicable in the area or to other properties in the same zoning district.
(5) The problem and resulting need for the variance has been created by the zoning ordnance and not the applicant.
Questions from Board:
Mr. Higgins stated that he agrees this property is unique as it sets so far back from the street. However, he does not see this as being unique to this lot. There are other lots that also have large front yards. Ms. Winland stated the structure is up somewhat of a grade. The structure is roughly 280 feet back from the road. There are not a lot of houses in the community that are set that far back. Mr. Higgins stated he has plenty of room in the front yard to set the fence back 30 feet. Ms. Winland stated that there is a gate 25 feet back from the property line. That, perhaps, is why the petitioner wants the fence to be along the same line. Cindy spoke with the Building Department and they told her the gate predated the requirements for a fence permit.
Jon Steele stated he does not understand the staff response to the last question under (e). Winland noted that contrary to the staff report, other decorative items could be placed in the front yard.
Randall Frank, 1298 West Sugnet Road, stated this fence is not going the entire width of his property. The fence will go into the woods and it ends in the woods. The fact that he wants it where he does is that there are already two gates in existence at 25 feet back from the property line. This is why he is asking that the fence be allowed to be in the same plane. The picture provided does not have the pond on the property. This is a site that appeals to a lot of kids to come and catch frogs. It is a wrought iron fence. He looks at this as an asset to the neighborhood. The house is set way back and it is on top of a hill. A 3-1/2 foot fence would look silly in front of this house. He decided he needed the fence for insurance purposes and for the neighborhood. He does not think wrought iron fences will pop up all up and down the street as a result as him asking for this fence.
Mr. Higgins asked for the location of the pond. Mr. Frank stated it is on the far right line as you face the property. It is about 45 feet back from the street. The pond is more than three feet deep. If you factor “muck”, it is probably six or seven feet deep. Mr. Higgins asked when the gate was installed. Mr. Frank stated it was about 14 years ago and it was installed by him. If he put the fence up, children could still access the pond by going through his neighbor’s property or through the woods.
Mr. Lichtenwald asked how long the pond has been in existence. Mr. Frank stated for as long as the house has been there, and it was built in 1941. Mr. Frank purchased the house in 1993. The bars are 3-13/16’s inches apart on the fence. The fence is basically a straight fence and not an enclosing fence. However, it will look like it is an enclosing fence. The gate is manually opened and closed. However, they do not close the gate – it is purely decorative. Roy Green asked about the height of the existing gate. Mr. Frank stated the gate is probably seven or eight feet high. The panels out from the gate are probably six feet high and then it goes down from there to five feet.
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-1.
2. There is a ½ acre pond located approximately 45 feet back from the property line, and apparently some distance from the east property line.
3. The house is located approximately 280 feet back from the road.
4. The gate is located 25 to 30 feet back from the front property line, the petitioner was not sure how far, and it has been in place 14-15 years.
5. The gate is approximately 7 feet high, the first set of panels are approximately 6 feet high and the second set of panels are 5 feet high.
6. The house was built in 1941 and the current pond was a part of the sewer system.
7. The petitioner purchased the property in 1993.
8. The lot is roughly 3.5 acres.
9. One communication was received from someone who came into the office. Mr. Charles Hepinstall, whose property abuts this property on the west side. He was not opposed to this. Mr. Hepinstall lives on North Parkway.
10. Mr. Frank wants a fence to be installed 115 feet to the east side of the property and 36 feet to the west side of the property – not at the property line.
It was moved by Steele and supported by Lichtenwald to approve Petition No. 09-06 based on the findings of fact for an area/dimension variance at 1298 West Sugnet Road.
Mr. Steele stated it was a challenging analyzing this case. He thought the pond was enclosed. The house is being lived in as it is. It is not impacting that ability. He feels it is a very unique property. While he agrees that 5 feet is appropriate for the property, he is reluctant to set a precedent because the measurements have not been precisely provided. The wings on the gate which come in now, could be designed to go out. He does not have a problem with the height because of the uniqueness of the property. He thinks the uniqueness of the property allows for that setback.
Mr. Lichtenwald stated he cannot meet criteria (a). The petitioner has lived there for several years and has not had a problem with the property. He can understand the wrought iron fence would look good but it would do substantial justice to the applicant. The property is large and the house is set back, but it is the pond that makes this property unique. He does not think the property itself is unique. The petitioner has stated he wants this fence for safety reasons and Mr. Lichtenwald does not think this fence will keep people out of his pond. He also feels this is self-created.
Mr. Siemer stated the pond has been there since approximately 1941 and no one has seen it necessary to fence off the pond up to this point in time. Children will get around the fence, especially since the gate is always open. This sort of negates the fact that this is a safety issue. Youngsters can move in from the adjoining property to the pond. Considering the size of the lot, the additional five feet could certainly be accommodated.
Mr. Higgins stated he also cannot get around criteria (a). There is nothing that would render conformance unnecessarily burdensome or could not use this property for its intended purpose. The decorative fence would enhance the property but that is not why we are here. The petitioner stated he wanted the fence to keep children out of the pond. Children are very inventive and the gate is not closed. This fence is not going to do what he wants it to do. The pond is the unique thing on this property but the fence will not do what the petitioner intends it to do. He also feels it is self-created.
Mr. Green stated the purpose of barricading an area is to enclose the entire area. This will not do that so he has some issues about safety.
Voting on the motion.
The motion to approve Petition 09-06 was denied by a vote of 5-0.
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 7:32 p.m.