MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,
TUESDAY, AUGUST 16, 2011
6:30 P.M., IN COUNCIL CHAMBERS, CITY HALL,
1. ROLL CALL
PRESENT: Board Members - Green, Higgins, Lichtenwald, Siemer and Steele
ABSENT: Board Members – None
OTHERS PRESENT: Cindy Winland, Consulting Planner, Cheri King, Community Development Specialist and 3 others.
2. ELECTION OF OFFICERS
a. The Nominating Committee met and places the name of Jon Steele for Chairperson and Roy Green for Vice Chairperson.
Motion by Siemer, seconded by Higgins to accept the Nominating Committee’s slate of officers. There were no additional nominations from the floor. Motion passed 5-0.
Mr. Higgins thanked Mr. Green for his service as Chairperson for the past three years. Roy is not eligible to run again for Chairman under the ZBA Rules of Procedure.
3. APPROVAL OF MINUTES
It was moved by Siemer and supported by Lichtenwald to approve the minutes of the May 17, 2011 meeting. Motion was unanimously approved as presented.
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. Steele reinforced that the variance goes with the property and not with the property owner.
a. No. 11-05 – Renee Johnson for a dimensional variance to permit extending a front porch into the required front yard setback. The applicant is asking for a variance of 11’ to the required 25’ minimum front yard setback in the RA-3 residential district. The principal structure is a legal nonconforming use, located 21’ from the front property line. If granted, the front yard will be 10’. The property is located at 1316 W. Pine Street.
Ms. Winland showed an overhead of the subject property. It is on Pine Street between Jerome and Fitzhugh Street. The requirement is 25 feet for the setback. The current setback is 21 feet. The petitioner is asking to be allowed to have a 10 foot setback. The property is zoned RA-3. This parcel is surrounded by Residential zoning. This structure is used as a daycare. It is a legal non-conforming property and has been used as a daycare for a long time.
The required setback requirement is 25 feet. There is one footnote in the zoning ordinance that could have a lesser setback than what is required by the ordinance if you look at the setbacks of the properties within 100’ of the subject property. Using this guide, and keeping mind that the actual property lines are unknown, the variance could be as little as nine feet or as much as eleven feet. This variance request is for eleven feet to err on the side of caution.
A photo of the existing structure and plan and elevation views of the proposed structure were shown. The proposed porch extends to within ten feet of the property line with stairs on both sides of the porch, parallel to the front face of the house. The porch will be covered with a peaked roof.
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 pointed out four reasons. This change would match the style of the Pine Street neighborhood, the variance would provide for a more residential look, and the porch with the staircases are designed to lead to the driveway. Conformance with the zoning ordinance would not be unnecessarily burdensome as they have been using the property as it is for many years.
(2) The variance will do substantial justice to the applicant as well as to other property owners.
The addition will provide for a more residential look rather than a business look. The variance would provide for additional safety for people coming and going from the daycare. It is likely to have a positive impact on the neighboring properties.
(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 petitioner has noted that it will balance the practical and safety needs, as well as providing a more residential look. Because this is a legal childcare, staff considers this size of a porch to be the minimum size to accommodate a day care and is a reasonable request. It would give the home a little bit more of a residential feel.
(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 this will be more consistent with the neighborhood. Staff stated the original structure was built in 1885. It is unique because of the use and the structure has been added on to multiple times over the years. It also existed well before any zoning existed 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 petitioner has noted that this building existed prior to the zoning ordinance being put into place. There has been a legal non-conforming use there for somewhere between 20 and 30 years. This type of use does need to take into consideration the safety of the children coming and going.
Ms. Winland showed a number of photos from the surrounding neighborhood. The houses to the east and west are all closer to the street than currently allowed by the ordinance. The neighbor across the street is maybe two feet behind the sidewalk. Another neighbor across the street is also about two feet back from the sidewalk.
Mr. Higgins asked how the ten feet would be measured. Ms. Winland stated she measured from about six inches inside the sidewalk. Mr. Higgins asked if the sign would continue to be allowed if the variance is granted. Ms. Winland stated that the sign is legal under the ordinance. It would remain legal if the variance is granted. Mr. Higgins stated that this use is legal nonconforming today. Would it remain that way if the variance is granted? Ms. Winland stated that it would. Mr. Green asked about the conditions of ADA access. Generally things that are not open to the public are not required to comply with ADA however Ms. Winland did not know the ADA requirements, if any.
The petitioner, Renee Johnson, 6112 Partridge Lane, Midland, stated she has lived here for 16 years. She just purchased the building on Pine on May 1, 2011. She is interested in continuing the use of that building. They would like to place a porch on the building that will make it more aesthetically appealing and safer. The current porch is not safe. It is made of cement and it is breaking down. Parents often leave with two or three children in hand. Mrs. Johnson and her husband chose this property because it is located in a residential neighborhood. They need to feel like they are coming “home” after school and not to a gymnasium. They would like a porch that will make it feel like a home.
Mr. Steel asked Mrs. Johnson to go through the criteria. Criteria #1: The current porch is not safe. It is a challenge and is difficult for kids and parents to open the door and get in safely. Criteria #2: They want to have parents be able to pick up their children safely. This change will greatly improve the value of the building. It will be a place where you can sit and talk to the neighbors on the front porch. It also improves the neighbor’s view. It will look like a house and not a business. Criteria #3: The safety of their building and ingress and egress are very important to their business. It is important that they have a minimum of 10 feet on the porch so parents can pass each other coming and going. Criteria #4: When Mrs. Johnson looked around the neighborhood, she thinks they have the largest setback in the neighborhood. Their request would be consistent with the style of the neighborhood. Criteria #5: Strict compliance with the zoning ordinance – the building is already interfering with the limited setback. Their desire is not to have a big bold sign. The sign would not be greater than what the ordinance allows. They also want to make sure that runoff from snow or rain does not impact the children on the steps.
Mr. Green asked about parking. Mrs. Johnson stated they desire to have about five spaces. Off street parking can happen but it will be strongly discouraged with the steps going off the porch from both sides. Mr. Siemer asked if the current porch was replaced, would they still need a variance. Mrs. Winland stated that, if they replaced the same footprint of the porch, they could replace it and the steps could come out even further, provided the porch is not covered.
Mr. Huschke, 2288 N. Roman Ridge, Midland, is a parent of children who use this daycare. He has been assisting Mr. and Mrs. Johnson in the design of this project. The flow of traffic has vehicles on both sides of the street which severely limits the flow of traffic on this narrow street. It was his understanding that because the decking height is already at 36 inches; it would need to comply with the setback requirements. There will be railing and interference between posts. When you subtract the swing from the door, there is minimal area for use.
Mr. Green asked if the steps will extend to the side of the building. Mr. Huschke stated that from the stairwell to the side of the building would be about 5 feet. Due to the door swing area, there is only about five feet of space for parents coming and going. Mr. Lichtenwald asked how they arrived at the 10’ x 12’ porch. There is a slight jog in the building about two inches to the left. The 10’ variance request came from the need for five feet off the building. They want 12 feet of roof line and porch above 36 inches. With respect to the actual location of the property line, Mr. Huschke was able to find one property marker two lots over. He found that the property line is approximately 11 inches off the sidewalk. There are 11 inches on the east side and 13 inches on the west side. The gable will extend 4-6 inches out from the porch deck. It would be the furthest point out from the structure. The railing and porch would be back further. The door is a standard 36” door.
Ms. Winland stated that they can have an open porch protruding into a front yard setback and not be closer than 10 feet from the street lot line. The only reason they need the variance is because the porch is covered.
Mr. Huschke stated this structure was begun being used as a daycare was 1966, according to the city’s records. It is currently being used as a daycare. His construction timeline is to have everything done by the time school starts.
No one from the public spoke either in favor of or in opposition to this petition.
Findings of Fact:
1. Building is located in RA-3 zoning district.
2. Location of the building is nonconforming with a front yard setback of approximately 21 feet.
3. The average property setback within 100 feet of the house is 19’9” feet.
4. The daycare has been in place for that use since 1966.
5. Other properties on the street have front porches protruding into the front yard.
6. The house was built in 1885, prior to the current zoning ordinance going into effect.
7. In the packet there was one letter in support of this petition. No other letters have been received.
8. The subject property is located at 1316 W. Pine Street.
It was moved by Higgins and supported by Green to approve Petition No. 11-05 based on the findings of fact for an area/dimension variance at 1316 W. Pine Street for a variance of 11’ to the required 25’ minimum front yard setback in the RA-3 residential district, provided the following conditions are met:
1) That the porch is only allowed to have side steps, according to the concept drawing submitted;
2) A sign must meet the criteria for a non-conforming use in this area.
3) Downspouts must be provided, preventing ice or water from accumulating on the steps.
4) The porch structure cannot be closer than 10 feet to the sidewalk.
Mr. Higgins stated that in some ways the petitioner does not meet all the requirements. Under Condition #1, but to continue to use this house for child care, it is apparent that they need a place for the children to get safely to cars. He feels it will improve the look of the house to have that porch on there. He thinks this variance request is reasonable. It appears that front porches on houses are common in this area. He feels a front porch on this house will help it be more functional.
Mr. Siemer stated that he is convinced because this house was built prior to the zoning ordinance being in place. It was built a long time ago.
Mr. Green stated that the issue, for him, is - could you use the property as it is? It has been that way for quite some period of time. The biggest issue for him is that the proposal will make it a safer situation for the children using the facility. He is happy with the conditions Mr. Higgins added to the motion.
Mr. Siemer, Mr. Lichtenwald and Mr. Steele stated they have no problems with any of the issues that have been raised. Mr. Steele feels this is a safety issue so he is in agreement with all the criteria.
Vote on the motion:
The motion to approve Petition 11-05 was approved by a vote of 5-0.
5. PUBLIC COMMENTS (not related to items on the agenda)
6. OLD BUSINESS
7. NEW BUSINESS
a. 2012 regular meeting schedule of the City of Midland Zoning Board of Appeals
It was moved by Higgins and supported by Siemer to approve the 2012 Zoning Board of Appeals meeting dates. Motion was unanimously approved.
8. DECISION SHEET SIGNATURES
a. 11-03 Review Finds of Fact
Hearing no further business, the Chairman adjourned the meeting at 7:35 p.m.
Cynthia E. Winland, AICP