MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

TUESDAY, SEPTEMBER 20, 2011

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

MIDLAND, MICHIGAN

 

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.   APPROVAL OF MINUTES

It was moved by Higgins and supported by Siemer to approve the minutes of the August 16, 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. 11-06 – Steve Robinson for a dimensional variance to permit 45’ light poles in a parking lot.  The applicant is asking for a variance of 15’ to the required 30’ maximum height in the Regional Commercial district.  The property is located at 1502 Joe Mann Boulevard. 

 

Background: 

 

Mrs. Winland showed an aerial photograph of the subject property.  It is located in the mall area in the Meijer complex.  There are two out lots there.  This development is strip-mall style and will contain four tenants.  They have removed three lights that were previously part of the Meijer parking lot.  They are requesting to be able to put those lights back up.  These lights are 45 feet high and the ordinance allows lights up to 30 feet high.  The entire area is zoned Regional Commercial. 

 

There were light posts in this area previously.  There are newly constructed islands in the parking lot to separate the parking spaces for these businesses from the remainder of the Meijer parking lot.  Mrs. Winland showed photographs of the area.  There are three bases for the light posts in front of the new building.  A second photo showed 45 foot lights in the Meijer parking lot with the lights in the Feeny parking lot in the background at 30 feet high.  The petitioner has been saving the old light fixtures with the intent to re-use these in the new locations. 

 

There are five criteria used to evaluate a variance request.  The portion of the ordinance the petitioner has requested a variance from is Section 3.12 on lighting, which says “fixtures shall not exceed 30 feet from the ground level.” 

 

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?

 

      In this case, the property is being developed for a Regional Commercial use.  The petitioner has stated that not being able to use these lights will change the character of Midland Square from the remainder of the parking lot.  The ordinance will cause the petitioner to purchase three new light poles, but staff does not think this will prevent the use of the property or be an undue financial hardship.

     

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

 

      The ordinance states that when a non-conforming structure is removed, it may not be installed in another location.  (Section 4.03)

 

(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.

 

      This is the minimum requested to use the existing poles.  The petitioner states the existing poles cannot be altered to be 30 feet high.  The existing lights have been there since 1992 when Meijer was built.

     

(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.

 

      Staff notes that there are no unique circumstances on this property.  There is nothing on this site that would cause a need to change the ordinance.  Other properties in the area would be made to comply. 

     

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

 

      Staff thinks the problem is created by the applicant’s desire to use the existing light poles.  This is something that did not occur on the site prior to the applicant’s request.

 

      Mr. Higgins asked what the height is of the new building.  Ms. Winland does not know.  That would be a question for the petitioner.  Mr. Higgins stated that the staff report states that there was a “note” in the site plan that ordinance requirements would be met.

 

      Mr. Green asked if they are only considering these three light poles – not other light poles.  Ms. Winland stated that when Meijer was built, there was no maximum requirement for the height of light poles.  The reason it was written into the Zoning Ordinance was for aesthetics and to limit the amount of light glow in the area.  There are other 30 foot high lights on the site now and they will meet the conditions.  Ms. Winland stated there is a provision in the ordinance that the light pole cannot be taller than the maximum permitted building height in that zoning district.  No public comments have been received regarding this variance request.  In the Regional Commercial zoning district, there is no maximum building height, according to page 2 of Article 26. 

 

      Ryan Schultz, Giffels-Webster Consulting Engineers, 2871 Bond Street, Rochester Hills, Michigan, who is the civil engineer in charge of Midland Square.  They are excited to be in the community.  They look at this as an opportunity to maintain the character of this site.  This is a unique experience in the community in that they are developing a 100 sq. ft. portion of pervious parking lot.  It was always their intent to preserve the integrity of the ordinance.  Mr. Schultz stated that you will create dark spots between the lights if they are lowered. 

 

      Mr. Steele asked Mr. Schultz to review the five criteria.  Mr. Schultz stated strict compliance with the ordinance would be an undue hardship on Midland Square and Meijer, by increasing the foot candles in areas of the parking lot and causing dark spots between the lights.  It will cause Midland Square undue hardship by increasing the cost of the project. 

 

      The variance will do substantial justice to the applicant because both Meijer and Midland Square will be moved forward as the project was intended.          They thought they met all the requirements of the ordinance as they built the project.  It was always their intent to relocate these lights 20 feet from where they were originally located.

 

      Is the variance the minimum needed to provide substantial relief?  They are asking to re-use the existing fixture at its current height.  They are not wasting materials and purchasing new lights. 

 

      Unique circumstances occur as that was how the parking lot functioned for the past 20 years.  Mr. Schultz feels the need for the variance was not created by the developers.  They had intended to use the existing light fixtures. 

 

      Mr. Higgins stated the 45 foot light fixtures meet the ordinance by overlapping light at seven feet above ground level.  They would have to put more lights in to meet the requirements of the ordinance if the 45 foot light fixtures are not permitted.  The wattage of the 45 foot lights is 750 watts.  The wattage of the 30 foot light fixtures is 250 watts.

 

      Mr. Schultz stated they purchased this property from Meijer and the lights would be on Meijer property.  Mr. Schultz showed where they would like to locate the 45 foot lights, moving them 20 feet east from where they were previously.  Their previous location would have been in a drive aisle, which would have posed a traffic problem.

 

      Tom McDonald, from Seerco, 14441 Eleven Mile Road, Oak Park, Michigan, is the contractor for the property.  The existing lights are approximately 180 feet apart from east to west.  The building will be 24 feet high to the top.  The three lights on their property will be 30 feet high and will meet the requirements of the ordinance. 

 

      Mr. Green asked for the total project cost.  Mr. McDonald stated approximately $750,000.  It would cost $10,000 - $12,000 for three additional light poles to meet the ordinance requirements. 

 

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

 

      Findings of Fact:

 

1.      The facility is zoned RC.

2.      The existing lights for which the applicant requests are 45 feet in height, the new required height is 30 feet.

3.      No public comment has been received.

4.      The building will be 24 feet in height.

5.      RC zoning does not restrict building height.

6.      The original Meijer site was constructed in 1992.

7.      This is basically redevelopment on an existing developed site.

8.      Midland Square will be the name of the development on Joe Mann Blvd.

9.      There are three additional 30 foot lights being installed.

10.  The location requested in the petition is Meijer’s address.  These gentlemen are representing Meijer for this presentation.

11.  The address is for parcel number 11-33-70-502.

 

      It was moved by Siemer and supported by Green approve Petition No. 11-06 based on the findings of fact for an area/dimension variance at 1502 Joe Mann Boulevard for a variance of 15’ to the required 30’ maximum height in the Regional Commercial district. 

 

      Mr. Siemer stated that, in doing their construction, if they had decided not to take the three 45-foot poles down, we would not be here tonight. 

 

Mr. Higgins stated he is having a problem answering “yes” to any of the criteria.  He feels that he is in agreement with staff’s comments.  The ordinance is very clear on the fact that they cannot move those lights.

 

      Mr. Green stated he cannot get past criteria #1.  It would not be economically burdensome, based upon the cost of the project.  The structure is built.  The petitioner may not want to make that change, but Mr. Green has trouble saying this would be burdensome.  He also has a problem with criteria “D”.  What happens if WalMart wants to do the same thing? 

 

      Mr. Lichtenwald stated he agrees with Mr. Higgins.  They cannot modify the existing pole.  However, the other four criteria are not met in this case. 

 

Mr. Steele agrees that criteria “A” and “D” are not met.  There is nothing that says it will unreasonably to prevent them from using the property.  There is nothing unique about this property.  If they were to approve this, they would be setting a precedent they would not like in the long term.

 

      Vote on the motion:

 

      Steele:  No

      Lichtenwald:  No

      Green:  No

      Higgins:  No

      Siemer:  Yes

 

      The motion to approve Petition 11-06 was denied by a vote of 1-4. 

 

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

            None

 

6.   OLD BUSINESS

            None

 

7.   NEW BUSINESS

Mr. Green might be interested in attending the MAP Conference in Grand Rapids.  He will

e-mail Mr. Baker.  Ms. Winland stated there will probably be an October ZBA meeting.

 

8.   DECISION SHEET SIGNATURES

      a.  11-05 Review Finds of Fact

      b.  11-03 Recorded

 

9.   ADJOURNMENT

      Hearing no further business, the Chairman adjourned the meeting at 7:25 p.m.

 

Respectfully submitted,

Cynthia E. Winland, AICP

Consulting Planner