MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

TUESDAY, MAY 18, 2010

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

MIDLAND, MICHIGAN

 

1.      ROLL CALL

PRESENT: Board Members - Green, Higgins, Lichtenwald, and Pnacek

ABSENT: Board Members Holthof and Steele

OTHERS PRESENT: Cindy Winland, Consulting Planner, Cheri King, Community Development Specialist and 7 others.

 

2. APPROVAL OF MINUTES

It was moved by Higgins and supported by Lichtenwald to approve the minutes of the December 15, 2009 meeting. 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. 10-01 Steven Simpkins for a dimensional variance for minimum setback of 24 feet instead of 30 feet for erection of an addition to an existing structure. The parcel is located at 3620 Devonshire Street.

 

Background: Cindy Winland showed an aerial photograph of the subject property. The applicant has asked to have a decrease in the required rear yard by 6. The property is zoned RA-1, single family residential, as are all the parcels surrounding it. The zoning regulations require that the rear yard setback is 30 and the applicant is requesting a variance of 6 to allow a rear yard setback of 24 to allow an addition to their home for an individual with a disability.

 

Criteria for granting a variance:

 

(1)   Will strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other non-use matters unreasonably prevent the owner from using the property for a permitted purpose?

 

The petitioner has noted that, in order to comply with the regulations regarding disabilities, they need to add on to the house for both a bathroom and a bedroom. Ms. Winland showed a rendering of the property as it looks today and how it will look with the proposed addition. Staff notes that, although the property is able to be used for a permitted purpose, due to a family member with a disability, it could render compliance to the ordinance unnecessarily burdensome.

 

(2)   The variance will do substantial justice to the applicant as well as to other property owners.

 

The applicant has designed the addition that he feels is necessary while maintaining the architecture and minimizing the change in appearance of the house from the front. The house will continue to be harmonious with the neighborhood in both size and design.

 

(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.

 

Staff comments that barrier free construction provides less latitude for modifications than non barrier free construction and as such, it appears that the proposed addition is the minimum necessary to provide substantial relief to the applicant.

 

(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.

 

The need for the variance is unique to the property owners, not the parcel itself. However, the parcel and structure are a typical size for the area. Anyone with similar circumstances could find themselves in need of a similar variance on a typical lot in this area of town.

 

(5)   The problem and resulting need for the variance has been created by strict compliance with the Zoning Ordinance and not the applicant.

The problem is a combination of unique circumstances, the choice of a lot this size and strict compliance of the Zoning Ordinance. The applicant is likely to have had a choice of imperfect situations in the choice of a lot, given the circumstances. This means that it is difficult to conclude that the situation is self created or could be remedied by an action of the applicant such as the purchase of adjacent land, for instance.

 

Steven Simpkins; 3620 Devonshire Street, stated that, in consideration of what they needed for their son, this is the best option for increasing the size of his bedroom and bathroom in order to make it ADA compliant. This seemed to be the best alternative to maintain the roof lines, they have found siding to match the existing siding so it will not look like an addition, and have attempted to make the addition look as much as possible like it was part of the original house design.

 

Mr. Higgins asked why they did not propose putting the addition on the front of the house. Mr. Simpkins stated it would look more like an addition to the house and extend further into the front yard. With the addition on the rear of the house, it will provide an emergency egress from the house in case of an emergency. Mr. Higgins stated that, if there is a viable alternative, he cannot see how he can get by the required criteria. Mr. Simpkins stated that if they add on to the front of the house, it will look like an addition. They want to maintain the continuity of the house with other houses in the neighborhood. Mr. Simpkins stated they did not consider putting the addition on the front of the house because it would significantly alter the appearance of the home.

 

No one spoke either in favor of or in opposition to this variance request.

 

Questions from Board:

 

The Chairman closed the public hearing and directed the ZBA to enter into findings of fact.

 

Findings of Fact:

1.         It is located in a Residential A-1 zoning district.

2.         The home is being modified to accommodate a handicapped person.

3.         It is for a variance in the rear yard setback only.

4.         The amount of the variance will be 6.

5.         No comments either in favor of or in opposition to this variance request have been received by the Planning Department.

 

Steven Simpkins stated that, in thinking about Mr. Higgins comments about adding the addition onto the front of the house, they would lose either a bedroom or a bathroom that is used by Mr. and Mrs. Simpkins.

 

It was moved by Higgins and supported by Pnacek to approve Petition No. 10-01 based on the findings of fact for an area/dimension variance at 3620 Devonshire Street, for a minimum setback of 24 feet instead of 30 feet for erection of an addition to an existing structure.

 

Mr. Pnacek stated he looked at various other options for this addition other than on the back of the house. He never considered adding the addition to the front of the house. Mr. Pnacek assumes that in considering the cost of the project, it is probably the most realistic to add on to the back of the home. He has no issues with the design the way it is.

 

Mr. Higgins stated it is not his job to redesign the project. The space is there on the interior. It appears there is adequate room in the front to build this addition, so in that case, he has a problem with at least three of the criteria. The house would look very different if they did this, but the Zoning Ordinance states they have to build a house within certain parameters and this is possible in this case.

 

Mr. Lichtenwald stated he is good with the criteria.

 

Mr. Green stated that this property is not unique and Mr. Higgins pointed out that there are alternatives to what the petitioner is requesting. It would certainly change the appearance of the house, but it would be within the guidelines of the Zoning Ordinance. The property can be used for a permitted purpose.

 

The petitioner was offered the opportunity to have the case tabled until the next meeting where there would 5 members of the board. He declined.

 

Voting on the motion.

Green: Yes

Higgins: No

Lichtenwald: Yes

Pnacek: Yes

 

The motion to approve Petition 10-01 was approved by a vote of 3-1.

 

b.      No. 10-02 Osvaldo and Cindy Rivera for a dimensional variance for minimum setback of 24 feet instead of 30 feet for erection of an addition to an existing structure. The parcel is located at 604 Sylvan Lane.

 

Background: Cindy Winland showed an aerial photograph of the subject property. The property is zoned Residential A-1. The petitioner is asking for a variance of six feet to construct a roof over an existing six foot porch. The concrete portion of the porch extends six feet into the front yard. The step is in addition to the six foot concrete patio.


 

Criteria for granting a variance:

 

(1) Will strict compliance with restrictions governing area, setback, frontage, height, bulk, density or other non-use matters unreasonably prevent the owner from using the property for a permitted purpose?

 

The property is able to be used for a permitted use. The projection of a porch roof into the front yard would provide outdoor seating space, shade the front windows and add aesthetic appeal and possibly value to the house. While it is desirable to do each of these things, conformance with the ordinance would not be unnecessarily burdensome.

 

(2) The variance will do substantial justice to the applicant as well as to other property owners.

 

Staff stated that the applicant has designed an attractive porch for the scale of the house. The house will continue to be harmonious with the neighborhood in both size and design and would not hinder justice to neighbors in terms of the impact on their property, with is construction.

 

(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.

 

Other property owners are not denied equal justice, or the ability to do the same, as a result of a variance, if granted. Six feet is likely the minimum depth a porch would need to be to make it usable. However, there does not appear to be a hardship as a result of not having a porch.

 

(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.

 

The parcel is not unique, nor is the placement of the house in the neighborhood. The parcel and structure are typical in size for the area. The petition does not meet the test of being a unique situation.

 

(5) The problem and resulting need for the variance has been created by strict compliance with the Zoning Ordinance and not the applicant.

As a proposed, discretionary project, this problem is not a result of strict compliance with the Zoning Ordinance. In this situation, it is unfortunate that the house was placed in this location, limiting the availability to extend into the front yard with a covered porch.

 

Questions from Board:

 

Mr. Green asked about the six foot porch. The only difference the petitioner is asking for is to place a covered roof over the current stoop. How far out can they place the concrete pad?

 

The petitioner, Cindy Rivera, 604 Sylvan Lane, is requesting to be able to add a covered porch onto the front of the structure. She stated they would remove the cement and make it a wooden porch with a cover over it. It would be purely for their benefit. Mr. Green asked about the two options proposed in the packet. They would like to have the porch across the whole front of the house. However, if that could not be approved, their other option would be to be allowed to cover the porch in front of the front door that would allow people to get out of the weather when entering the house. This option would have posts put onto the cement that is there. In the second option, they would leave the concrete porch and just place a roof over the existing porch.

 

Ms. Winland stated the Planning Department has had two positive comments from neighbors in the surrounding area. No one spoke at the meeting either in favor of or in opposition to this variance request.

 

The applicant has agreed that she will accept a 6 x 10 roof over the existing porch to provide cover and safety for the existing porch.

 

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 A-1.

2.         There were two positive comments concerning the porch.

3.         The proposal for the full porch would be for a wood deck along the porch and railing.

4.         The alternative that the petitioner has proposed is a 6 x 10 covered porch with a gabled roof over the existing porch.

5.         The encroachment into the front yard setback would be six feet.

6.         All the adjacent properties on the street appear to be the same setback, of 30 feet.

 

It was moved by Higgins and supported by Green to approve Petition No. 10-02 based on the findings of fact for an area/dimension variance at 604 Sylvan Lane, for construction of a gabled roof, perpendicular to the existing roof, extending not greater than six feet and a width not greater than ten feet, with a 12 inch overhang.

 

Mr. Higgins stated he thinks that they have the burden to protect the front stoop when people come to visit. He feels that a cover over that stoop is needed. There is nothing in the Zoning Ordinance that allows you to cover it.

 

Mr. Pnacek stated that the petitioner never once talks about safety but rather blocking the shade and the windows. He is in favor of the 6 x 10 but he does not feel they meet any of the criteria. Mr. Lichtenwald agrees with Mr. Higgins.

 

Mr. Green stated that this is more of a safety issue. He is in favor of granting the variance for only the area of the existing front porch.

 

The petitioner was offered the opportunity to have the case tabled until the next meeting where there would 5 members of the board. She declined.

 

Voting on the motion.

Green: Yes

Higgins: Yes

Lichtenwald: Yes

Pnacek: Yes

 

The motion to approve Petition 10-02 was approved by a vote of 4-0.

 

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

None

 

5. OLD BUSINESS

None

 

6. NEW BUSINESS

None

 

7. DECISION SHEET SIGNATURES

  1. 09-10 recorded.

 

8. ADJOURNMENT

Hearing no further business, the Chairman adjourned the meeting at 7:32 p.m.

 

Respectfully submitted,

Cynthia E. Winland, AICP

Contractual Planner