1.      ROLL CALL

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

ABSENT:       Board Members – Steele

OTHERS PRESENT:       Cindy Winland, Consulting Planner, Cheri King, Community Development Specialist and 2 others.



It was moved by Higgins and supported by Lichtenwald to approve the minutes of the October 20, 2009 meeting.  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. 09-09 – Wayne Crosby for a use variance to permit construction of an accessory building without a principle structure on a parcel located at 1800 Harcrest Drive.


Background:  Cindy Winland showed an aerial photograph of the subject property.  The property is located on Harcrest Drive, west of Eastman Avenue.  Remax owns the property to the north, which is currently being used for parking, at 1800 Harcrest Drive.  The petitioner is asking to construct a garage storage structure on that parcel for purposes of storing materials relating to the Remax Office south of Harcrest Drive.  The property is zoned Office Service, with RA-1 and RA-4 zoning to the west.  The proposed garage is 24’ x 24’.  There will be no heat in this structure.  It will strictly be used for storage.  This petition is for a “use” variance, versus what we commonly look at being a “dimensional” variance.  We are looking at Section 3.03(a) of the Zoning Ordinance.  The criteria for a “use” variance are a little different.  For a use variance, the Zoning Ordinance requires a 2/3 majority vote of the membership of the Board.  This would be four out of five votes.


Criteria for granting a use variance: 

(1)   The property cannot be reasonably used for any purpose permitted in the zoning district without a variance.


Currently, Remax is using the subject property for parking.  This structure, if it were to be built on the current lot, the setback requirements would put the building out in the existing parking lot.  There is sufficient space on the property to permit the office use with the accessory structure. 


(2)   The need for the variance is due to unique circumstances peculiar to the property and not generally applicable in the area or to other properties in the same zoning district.


                   There is nothing unique about this property that would require a “use” variance.


(3)   The variance will not alter the essential character of the area.  In determining whether the effect the variance will have on the character of the area, the established type and pattern of land uses in the area and the natural characteristics of the site and surrounding area will be considered. 


The petitioner has noted that there is no other building on this property at the present time.  Zoning shows Office Service use along the majority of Eastman Avenue.  The anticipated development of the lot would not be altered or impacted with the building of the accessory structure.


(4)   The problem and resulting need for the variance has not been self-created by the applicant. 


                  The need for the variance is due to the applicant’s desire to have additional storage space.  There is room for a smaller accessory structure on the existing parcel where Remax is located, although it could create some rather awkward traffic patterns.  Article 26.5 talks about setbacks of accessory structures. 


            Questions from Board:


      Mr. Higgins asked how large an accessory structure could be built on the current Remax property as an accessory use.  Ms. Winland stated there is a side yard setback of seven feet and parking requirements would have to be calculated.  Mr. Siemer stated that both parcels are owned by the same individual.  Are they the same piece of property for tax purposes?  Ms. Winland stated they are two separate parcels for tax purposes.  Mr. Holthof asked if there is currently an attached garage on the primary structure.  There is not.


      Wayne Crosby stated he, or rather his wife, is the owner of the Remax Building.  They use a building back behind a church in the area for storage now.  He also stores things in his basement at home.  They are required to store documents for a number of years and there is no room in the existing building for that storage.  He states that two properties to the north have garages that are being used for storage.  What he wants to do is nothing different than the properties to the north.  They are going to construct the storage building in one corner of the property in case, in the future, someone wants to build a primary structure on this parcel.  During the winter months, all the snow is pushed to the west end of the existing driveway so there is really no room for the structure on the existing Remax parcel.  Since he already owns the property and uses it for parking, he feels it would be easier for him to conduct his business if the storage was nearby.  He feels it fits the existing neighborhood.  He does not need an additional office building across the street.  Mr. Crosby stated several of the condo owners in the area have called him and asked what he planned to do on that property.  They seem to have no problem with it. 


      The existing Remax structure is owned 50/50 between Mr. Crosby and Burnside and Lang.  It is a condominium building.  The land on that parcel and the building are owned 50/50 by Remax and Burnside and Lang.  The property at 1800 Harcrest is completely owned by Mrs. Crosby.          


      Mr. Crosby stated the parcel at 1800 Harcrest is unique because of its proximity to the Remax building and they already use that lot for parking for that business.  After 20 years in business, they need additional storage for records that they are required to maintain.  They also need storage for real estate signs and other equipment for his business. 


      Mr. Higgins asked if Mr. Crosby had considered rezoning the property.  Mr. Crosby stated he is not trying to circumvent the ordinance.  He could build a 10’ x 10’ shell of a building on the subject property and build a 24’ x 24’ storage building in the rear of the lot. 


      The garage across the street at 1710 Harcrest is behind an existing primary structure.  That is a legal garage.  Mr. Siemer asked if Mr. Crosby could build an office building on that lot and call it an office building and use that building for storage.  Mr. Siemer stated that it is obvious to him that the Board sees other options available.  Mr. Crosby stated that if he were to construct a garage at his current location, it would disrupt the flow of traffic and he would lose a significant amount of parking in the rear of the existing Remax building.  Mr. Green asked if Mr. Crosby had approached the other owners of the building regarding adding an addition to the west side of the building.  Mr. Crosby stated he would lose the integrity of the building if he were to build a garage in that area.  This does not seem to him to be an 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.


            Mr. Higgins stated Mr. Crosby has sold several homes for him in the past but he does not feel this will impact his decision on this case.


Findings of Fact:

1.      The property is located at 1800 Harcrest Drive.

2.      It is zoned Office Service.

3.      Its current use is as a parking lot.

4.      Two adjacent lots are vacant (the one to the west and the one to the north, which is Office Service).

5.      The owner of this property is also the owner of the property to the south and he is part-owner of the business.

6.      The church to the south is on residentially zoned property.  There is residential property on two sides of this property.

7.      The property to the east of the subject property is occupied by an office and what at one time was a garage on that property. 

8.      The requested building would be 24’ x 24’.

9.      There were two inquiries from people in the surrounding area but they were neither positive nor negative regarding this petition.

10.  The property to the south and west are RA-1.


      It was moved by Holthof and supported by Siemer to approve Petition No. 09-09 based on the findings of fact for a use variance at 1800 Harcrest Drive.


            Mr. Holthof stated there are many unique things about the primary property, but 1800 Harcrest is not unique and he does not feel it meets any of the criteria. 


            Mr. Siemer stated that requirement (a) cannot be met as the property can be reasonably used for a permitted purpose.  Also, requirement (b) cannot be met.


            Mr. Lichtenwald stated he agrees with what has been said. 


Mr. Higgins stated he is using the parcel for a parking lot.  He is having a lot of problems meeting any of the criteria.  It is self-created.  Even if he can justify the first three criteria, the last one cannot be met. 


Mr. Green stated that all criteria have to be met.  He has a concern about the uniqueness of this property and he feels it is not unique. 


             Voting on the motion.

            Green:  No

            Higgins:  No

            Holthof:  No

            Lichtenwald:  No

            Siemer:  No


            The motion to approve Petition 09-09 was denied by a vote of 0-5.


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











  1. 09-07 review Findings of Fact
  2. 09-08 review Findings of Fact




      Hearing no further business, the Chairman adjourned the meeting at 7:30 p.m.


Respectfully submitted,

Cindy Winland

Consulting Planner