MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

TUESDAY, APRIL 19, 2011

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

MIDLAND, MICHIGAN

 

1.      ROLL CALL

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

ABSENT:       Board Members – None

OTHERS PRESENT:       Cindy Winland, Consulting Planner, Cheri King, Community Development Specialist and 4 others.

 

2.   APPROVAL OF MINUTES

It was moved by Higgins and supported by Lichtenwald to approve the minutes of the March 15, 2011 meeting.  Motion was unanimously approved as corrected.

 

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. 11-02 – Dennis Quehl, on behalf of Kenin Baird for a dimensional variance to permit a six foot fence height on the east side of the property.  The applicant is asking for a variance of 2.5 feet to permit a 6 foot fence in the side street yard in the Residential A-4 zoning district.  The property is located at 1508 West Carpenter Street. 

 

Background: 

 

Cindy Winland presented an aerial photograph of the subject property.  It is located at the northwest corner of Jerome and Carpenter Streets.  The petition is for a fence in the street side yard, on Jerome Street.  The request is for a variance of 2-1/2 feet above the permitted height of a fence.  The parcel is 61 feet wide.  There is quite a bit of a slope from the front of the house to the back of the house.  The height of the fence varies.  The maximum height of the fence is 6’0”, but the fence gets lower as you travel up the hill.  This petition has been heard before, in 1998.  At the time, there was a little different berm.  The current petitioner has flattened out the berm quite a bit.  The variance was granted for the fence to be 42 inches above the berm.  The berm has now been lowered.  It is possible that the current fence is below the height of the former fence on the berm but that cannot be determined at this point in time.  The previous fence was a consistent height of 42 inches above the berm.  It did slope down.  The fence at the back of the property was 6’6”.  The variance granted permitted the prior fence.  The question now is whether the existing fence is at a higher or lower level than the prior fence on top of the berm.  The new fence appears to be in the same location as the prior fence. 

 

Fences on a street side lot need to meet a minimum sideyard setback or they cannot be over 42 inches in height.  The staff report, in section 7.02 explains how a fence height is measured.

 

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?

 

      Both the petitioner and staff noted that this would not prevent the property from being used for a permitted purpose.

 

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

 

      The petitioner states there will be an improved appearance.  The berm has been decreased in slope so this will increase safety.  The rear yard fence has been lowered to six feet.  Neither the applicant nor the staff was aware that there was a variance previously granted to this property.  There is no inconvenience to anyone walking along the fence.  By lowering the berm and adjacent grade in the back yard, they have eliminated a safety hazard. 

 

      The neighbors have found this to be a fair solution to their problem and they have submitted comments in favor of this variance.

 

(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.

 

      The adjacent property owners have submitted a statement stating that this fence increases the petitioner’s property value as well as the surrounding property values.  The parcel is 61 feet wide.  The required setback is 15 feet.  Moving the fence in 10 feet would essentially change the location of that fence to block the entryway into the back door of the house.  Substantial relief would not be achieved by moving the fence in.  The property owner needs the high fence in order to contain a large dog, although that is not something usually taken into consideration, as the variance goes with the property. 

 

(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 petitioner has noted that there is no property on the east side of this property so the height does not immediately affect an adjacent property.  The current fence height is actually lower than the previous fence height as the berm has been removed for the most part.  This property is topographically unique in that there is a slope of the property of over five feet.  The slope had been reduced as a result of grading.  The slope is present on the other side of the street, but is generally not applicable to other properties in the community.

 

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

 

      The applicant notes that the need for the height of the fence of the ground of the property.  It is the property owner’s intent to place the more finished side out either by finishing the outside or turning the existing fence around.  The owner installed the fence, thereby creating the need for the variance.  The usefulness of the property would have reduced usefulness by moving the fence away from the street side to the 15’ required setback.

 

Staff notes that the situation was created by the applicant due to the fact that the fence was installed outside of the ordinance regulations.  The nature of the property was not created by the applicant.

 

      Dennis Quehl, 3309 Fuller Drive; is acting as the petitioner for his daughter.  His daughter put the fence up.  The biggest issue with the fence is the fact that her dog is taller than a 42 inch fence.  The grade now is between 18 and 24 inches.  Previously, the grade was over six feet at the rear of the property.  This is significantly lower in height.  Aesthetically it looks much better now.  They have removed the berm.  The fence now follows the sidewalk, which is what most fences would do.  To move the existing fence into compliance, by moving it behind the required setback would be to move it into the central air conditioner unit in the back of the house.  The neighbors have submitted a petition stating that “the height of the current fence running along the entire length of her property on Jerome, we believe is actually lower than the height of the previous fence as the berm has been significantly reduced.”  None of the properties around the subject property have been hurt in any way.  Actually they are better off.  There is a lower fence and a much lower berm.  The fence is just a little over four feet at the house, perhaps 4-1/2 feet.  Mr. Steele asked where the grading started.  Mr. Quehl stated there was a huge hole about five feet deep in the back of the yard.  They took the dirt and regarded the back yard to fill the hole. 

 

      Mr. Green asked who installed the fence.  Mr. Quehl stated it was installed by his daughter and some friends.  Mr. Green asked that, if there was not an animal present, what is the need for the fence?  Mr. Quehl stated there would not be the need for that tall of a fence if the dog were not there.  If they moved the fence in to meet the required side yard setback, it would be in the middle of the back door. 

 

      No one from the public spoke either in favor of or in opposition to this petition.

 

Question from Board:

 

      Findings of Fact:

1.      It is zoned RA-4.

2.      It is a corner property.

3.      The property is 61 feet wide.

4.      The property slopes downward to the north, parallel to Jerome Street.

5.      The fence is currently located on an earth berm that is 1-1/2 to two feet high, according to the applicant.

6.      A previous appeal for a fence at this location allowed a fence.

7.      16 neighbors indicated they were in favor of this variance.

8.      The fence does not block light or air in this area.

9.      It does not block any light or air to adjacent property

10.  It does not block the sight distance for traffic in this area.

 

      Motion by Higgins, seconded by Steele to approve Petition 11-02 based on the findings of fact.  He proposed an amendment to the motion to 3-1/2 feet above the point of the berm.  The amendment was accepted by Mr. Steele.  As the variance goes with the property, the dog does not enter into the criteria considered for the fence height. 

 

      Ms. Winland stated there is a previous variance that permitted a fence height to an absolute height of the fence and berm.  There are two ways to interpret the previous variance:  Was the variance granted for a 42” fence above a berm or was it the absolute height of the fence and berm?  Mr. Higgins stated he feels this is a very unique piece of property yet he doesn’t like to see a fence along a street side of the property. 

 

Lichtenwald pointed out that the variance must have been granted as the total height of the fence and berm.  If it had been granted as 42” above the berm, what would happen if the berm was bigger and now the variance was 42” above the berm? 

 

      Vote on the Amendment:

      Steele:  No

      Lichtenwald:  No

      Green:  Yes

      Higgins:  Yes

      Pnacek:  No

 

      The amendment fails 3-2.

 

      Mr. Pnacek stated that the petitioner stated he will place the finished side of the fence toward the outside.  Mr. Higgins reviewed the criteria.  The first criterion was even stated by the petitioner that not having the variance would not keep the petitioner from using the property for a permitted purpose.  Mr. Steele stated he can meet all the criteria.  Mr. Pnacek stated he agrees with Mr. Steele.  Mr. Lichtenwald stated the variance before was granted for 42 inches above the berm.  The berm has been lowered so this fence is below that.  He is wondering why this petition is before the Board.  Mr. Pnacek feels the new fence is more appealing and safer than the prior one.  Mr. Green stated that the ZBA has a responsibility to be consistent even though the first criteria cannot be met.  Would the variance be necessary if the animal was not there?  Mr. Lichtenwald stated that if the prior variance had not been granted, he would have a totally different view on this case.   

 

      Ms. Winland stated that, although we do not know how high the previous variance allowed the fence to be on top of the berm.  However, it is clear that the current fence is lower than the previous fence on top of the former berm. 

 

      Motion by Higgins, seconded by Lichtenwald that this petition be tabled until the Planning Department has a chance to review whether or not the current fence meets the requirements of the prior variance.  If it does, the petitioner can withdraw the petition and leave the fence as it is. 

 

      Vote:

      Steele:  Yes

      Lichtenwald:  Yes

      Green:  Yes

      Higgins:  Yes

      Pnacek:  Yes

 

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

            None

 

5.   OLD BUSINESS

 

a.      No. 11-01 – Barrett Sign Company, on behalf of Dow Kokam, for a dimensional variance to permit additional square footage of wall signage.  The applicant is asking for a variance of 1,256.50 square feet to the 300 square feet of wall signage that is permitted in the IA – Industrial district.  The property is located at 2700 South Saginaw Road. 

 

Motion by Higgins, seconded by Lichtenwald to remove this petition from the table.  Motion passed unanimously.

 

Ms. Winland presented an aerial photograph of the Dow Kokam property.  Bay City Road is on the south side.  Saginaw Road is on the east side, Discovery Way on the north side and Washington Avenue on the west side.  The petition was for two wall signs to be placed on the south elevation of the property and the north elevation of the property, with no signage on the east elevation.  The Zoning Ordinance allows 300 sq. ft. of wall signage to be placed on the building in Industrial Districts.  The applicant chose to withdraw the request, to table the case until they could make a determination on the proposed size of the sign. 

 

A rectangle around the word “Dow”, a rectangle around the lightening bolt, and a rectangle around the word “Kokam,” the rule is that as long there is three feet between each rectangle, they are considered individual signs.  Therefore, we do not have to take into consideration all the space around the “Dow” and the “Kokam” portions of the sign.  The requested size of the sign is 72% less than the prior request.  The current request is for 442 square feet of signage where 300 feet of signage is permitted. 

 

Winland also showed the parallelogram method of measurement and the effective request that would be made to use this form of measurement.

 

Criteria:

#1 – It is a significant decrease over what was requested before, while the size of the wall remains the same.  There is also a stipulation in the Zoning Ordinance that the size of the sign could be measured by a parallelogram.  At this stage, we are at an increase of 142 square feet of additional signage requested.  They are also requesting a ground sign. 

 

Mark Slater, 1908 Trailwood Circle; the rendering of the signage on the building is to scale.  That is the intent.  The 4’6” letters and the lightening bolt are to scale with the size of the building.  It is a 60’ high wall.  The previous time they were here, they were talking about an 18’ lightning bolt.  They have softened that to 10’6”. 

 

The other point is that the box method for measuring would be preferred except for the three feet.  The parallelogram would be what they would request for measuring the sign.  If they are requesting the parallelogram, the variance would be 442 square feet instead of 142 square feet.  They have made some modifications.  They do not think the size of the sign is unreasonable for the size of the building and the wall.  Either way you measure it, it does not take up much wall space.  Either way you measure it, we want to protect our company logo.   They have softened their lightening bolt by about eight feet.  The size of the letters remains the same.   Last month, the requested variance was about 1200 sq. ft. over the maximum allowable amount.  The request is for 428 sq. ft. per sign or a total of 856 sq. ft. of signage. There has been a change in measurement method and decrease in the size of the sign.  Discussion continued about the theoretical size of the sign as measured from the farthest point of the sign if there was 3’ between each component of the words and lightning bolt.

 

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

 

Findings of Fact:

1.      Zoned Industrial A.

2.      The building is 460,000 sq. ft.

3.      The speed limit on Saginaw Road is 35 mph.

4.      The wall height is 60 feet.

5.      A ground sign will still be permitted.

6.      The applicant has decided to use the parallelogram method to determine the size of the sign.

 

Motion by Higgins, seconded by Pnacek based upon the Findings of Fact, provided that the sign is measured by the parallelogram method.  Also that each sign is not greater than 428 square feet per sign and not more than two wall mounted signs shall be on the building. 

 

Mr. Higgins stated that he thinks many people will be coming in to ask for additional signage. 

 

Mr. Higgins feels that none of the criteria have been met.  They can use the building with two 150 sq. ft. signs.  A large building does not necessarily call for a large sign.  The walls are huge.  WalMart has a large building without this much signage. This is self created.

 

Mr. Lichtenwald agrees with Mr. Higgins’ comments.

 

Mr. Pnacek also agrees but has reservations as this is a very large building.  A WalMart is half the size of this building.  The walls are huge. The unique thing is that size of the building with respect to the road.

 

Mr. Steele stated he has mixed feelings.  This is a big building among other big buildings.  It is on a busy road.  He is not concerned about seeing the building, but he is concerned about seeing the sign.  There should be some variability that is allowed and not an absolute maximum amount for all buildings.  He does agree that it is self-created. 

 

Mr. Green stated there is an option that was presented that boxing in the letters as a form of measurement. He does not feel they would lose that much identification.  The lightening bolt is what is going to catch people’s attention.  There is a remedy available that would get it closer to the amount of signage permitted by the ordinance.  He also agrees with Mr. Higgins that if there are issues with the size of signage in the zoning ordinance, they should be handled by the legislative process, not by variances granted by the Zoning Board of Appeals. 

 

Mr. Higgins stated that the size of the letters are 4’6” and they could be 3’ and they would come close to 150 sq. ft.  It is possible to get the sign much closer to the amount allowed by the Zoning Ordinance and still have the sign seen from quite a distance away. 

 

There was discussion about whether the ZBA can set conditions on the request of the applicant such as requiring that the letters are 3’ apart so that the request is effectively smaller.  Higgins believes that the Board could amend the motion to permit the parallelogram method of measurement with a maximum of 2, 220 square foot signs that would force them to use the block method of measurement if they want a sign.  Winland stated that the Board needs to vote on the request of the applicant.  There was continued discussion on this point.

 

Pnack noted that it doesn’t matter how you measure this.  The size of the letters remains the same.  Litchtenwald was concerned that the applicant could put up one 800 sq. ft. sign without these conditions discussed.  Steele reiterated that sign still covers the same amount of space with both methods of measurement.

 

 

            Voting on the motion:

            Green:  No

            Higgins:  No

            Lichtenwald:  No

            Pnacek:  Yes

            Steele:  Yes

 

The motion to approve Petition 11-01 was denied by a vote of 3-2.

 

6.   NEW BUSINESS

             None

 

7.   DECISION SHEET SIGNATURES

            None

 

8.   ADJOURNMENT

      Hearing no further business, the Chairman adjourned the meeting at 8:15 p.m.

 

Respectfully submitted,

Cynthia E. Winland, AICP

Consulting Planner