MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

TUESDAY, OCTOBER 18, 2011

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

MIDLAND, MICHIGAN

 

1.      ROLL CALL

PRESENT:      Board Members - Green, Lichtenwald, Siemer and Steele

ABSENT:       Board Members – Higgins

OTHERS PRESENT:       Cindy Winland, Consulting Planner, Cheri King, Community Development Specialist and 6 others.

 

2.   APPROVAL OF MINUTES

It was moved by Siemer and supported by Green to approve the minutes of the September 20, 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. 11-07 – Wally Sleeper for a dimensional variance to permit constructing a covered porch that would extend into the front yard setback.  The applicant is asking for a variance of 8’ feet to the required 30’ maximum front yard setback in the RA-1 residential district.  The property is located at 5224 Sturgeon Avenue.

 

Background: 

 

Ms. Winland showed an aerial photograph of the subject property.  It is in an RA-1 zoning district.  Mr. Sleeper is asking for a dimensional variance to the required front yard setback of 8 feet.  His proposal is to build a covered porch which will extend 8 feet into the required front yard of 30 feet. 

 

The parcel to the north has a 20 foot setback and the property to the south has a 30 foot setback.  The proposal is to add a porch which will have a gabled roof and some steps.  The review criteria include five questions for consideration by the Board members.

 

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 he has not been able to construct a porch for sitting and getting out of the elements and still meet the setback requirements.  Staff notes that the property is able to be used for a permitted purpose which is single family residential.  Conformance with the ordinance is not unnecessarily burdensome.

           

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

 

      The petitioner has noted that the porch will be nice for his family and it will increase curb and market value and will bring the home up to date with the homes in the surrounding area.  Staff notes that the petitioner has designed a porch that will enhance the view of the house.  However, the property is usable without the porch.

 

(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 even with the eight foot variance, it will be more of a setback than several of the houses down the street.  Six feet is likely the minimum depth necessary to make the porch usable.   However, there does not seem to be a hardship by 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.  It is consistent with other parcels in the area, at .33 acres.  The property itself is not unique.  Although it is fairly standard in this area to have a porch. 

           

(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 stated that having the minimum setback at 30 feet does not allow for any changes to the front of his property.  In order for him to have his porch constructed and obtain his building permit, he must first obtain a variance to his current setback.  Ms. Winland stated many homes in Midland are built at the setback line.

 

      Mr. Sleeper determined that he would like to proceed with hearing the petition with four Zoning Board of Appeals members.  Wally Sleeper, 5224 Sturgeon Avenue, stated that needing a porch is a safety issue.  They would like to have a covered porch to get out of the elements in the winter.  It will be physically appealing to the neighborhood to add the porch onto his home. 

 

      The petitioner stated that, with the setback at 30 feet now, he cannot put a porch on his house without getting a variance.  The porch is desirable for safety reasons as well as cosmetic appeal of the house.  It will allow seating area and safe entry into the home.  It will also increase the value of the home.  They will need a minimum of 8 feet of width for them to be able to sit on a bench and someone to walk in front of them to get into the house.  A setback of 30 feet will not allow him to add a porch onto his home.  The house next door also has a porch that extends two feet further than his home is now.  Having the setback at 30 feet does not allow him to have a porch addition to his house.  It will add curb appeal and add value to his home. 

 

      Tim Lichtenwald asked how long Mr. Sleeper has lived in the house.  Mr. Sleeper stated the home was built in the 1950’s and he has lived there for 11 years.  Mr. Siemer stated the home is well maintained and it is an asset to the neighborhood.  Mr. Green asked about access.  There has been some remodeling lately.  Is most of the access to the house from the front or the side?  Mr. Sleeper stated most of the access to the house is from the front.  There is no covered access from the side at all.  They use both entrances to the house.  Ice typically freezes on the porch when water runs off the roof.  The porch will eliminate the ice and snow accumulation on the porch.  There are no gutters on the house. 

 

      Carl A. Anderson, 5220 Sturgeon Avenue, stated he is the first property south of Mr. and Mrs. Sleeper.  He thinks it will be a real asset to add a porch onto their house.  You can see right through it so there is no obstruction of view.

 

      Carmal Billman, 5213 Sturgeon Avenue, thinks the porch will give the house character.  A lot of houses in the neighborhood have porches and it would be nice for them to be able to have it.

 

      No one from the public spoke in opposition to this petition.

 

      Mr. Green asked Ms. Winland when the houses were built and if the house next door had a variance because it is only set back 20 feet.  Ms. Winland stated they were all built about the same time and they are all pretty much aligned.  We do not know when that area was annexed into the city. 

 

      Findings of Fact:

1.      The property is zoned RA-1.

2.      There are two comments in support and no comments in opposition.

3.      The property owner has requested an 8-foot encroachment into the front yard setback.

4.      The house was built in 1957.

5.      The current owner stated he has lived there for 11 years.

6.      The house, as it exists now, is in compliance with current setbacks.

7.      The property is a typical 1/3 acre.

8.      The property to the north has a setback of 20 feet, but has not been granted a variance.

9.      There is no current existing gutter situation on the front porch and it is a front stoop.

 

      It was moved by Siemer and supported by Green to approve Petition No. 11-07 based on the findings of fact for an area/dimension variance at 5224 Sturgeon Avenue for a variance of 8’ to the required 30’ maximum front yard setback in the RA-1 residential district. 

 

      The Board unanimously approved the findings of fact.

 

      Mr. Green stated that the Board has to vote on all five criteria in the affirmative.  It obviously would do substantial justice to this homeowner.  The variance requested is the minimum variance.  This is the most difficult one for him to get by.  A four foot setback into the setback would also provide a cover for the stoop.  The property is not unique as all these homes were built about the same time and the lot is about the same size.  It is a concern that there is a neighboring property that has a 20 foot setback.  However, he cannot meet all the criteria.

 

      Mr. Lichtenwald stated that he does not feel all the criteria have been met.  They have lived in this house for 11 years and have done so well.  Unless the porch is enclosed, there will still be water, snow and wind whirling under the porch roof.  The first criteria is not met.  It will do substantial justice to the property owner as well as the neighborhood.  It is self-created because for 54 years there was not a porch there.  Now, all of a sudden, they want to put a porch there.  It is unfortunate, but they have to go by all the criteria.

 

      Mr. Siemer stated it would provide justice for the homeowner relative to his neighbor’s property for him to have a porch.  The second part of the first criteria states that it will “render conformance to the ordinance unnecessarily burdensome.”  The way they have designed the porch will relieve the “burdensome” portion.  His addition would improve the quality of the home and its value.  This would have a beneficial effect on the entire neighborhood.  He thinks the 8-foot addition, which would be less of an encroachment than the property to the north.

 

      Mr. Steele stated he likes the idea of putting the porch on.  Unfortunately, there are five criteria they have to cover.  He is not convinced that not having a porch is unnecessarily burdensome.  The next three criteria are not difficult to understand.  This is the minimum variance needed and the property is a little bit unique.  He is having problems approving this, as much as he likes the idea of the porch.

     

      Vote on the motion:

 

      Steele:  No

      Lichtenwald:  No

      Green:  No

      Siemer:  Yes

      Higgins:  Absent

     

      The motion to approve Petition 11-07 was denied by a vote of 1-3. 

 

b.      No. 11-08 – Douglas Strock for a dimensional variance of 10’ to the required setback for signs, a dimensional variance to the distance between two faces on a sign and a use variance to permit a pole mounted sign on existing sign poles.  The property is zoned Office Service.  The property is located at 4608 N. Saginaw Road. 

 

Background: 

 

Ms. Winland showed the location of the property on North Saginaw Road.  This property is zoned Office Service.  It is the former site of Thomas Photography.  She showed the original sign from Thomas Photography.  This sign has been there in the neighborhood for 30 years.  The aerial photo showed that the previous sign had been in the right-of-way for quite some time.  She believes that this sign was put up before the property was annexed into the city, also.  The sign was a legal non-conforming use until the top of the sign was removed.  The petitioner is asking for two dimensional variances and one use variance.  One variance is to move the sign as close to the property line as possible.  The parking lot extends out into the right-of-way.  Putting the sign just inside the right-of-way still places the sign in the parking lot.  The request is to put it at the property line, if possible.

 

The second request was for a dimension variance that requires that if a sign has two faces they must not be more than 3’ apart but has been withdrawn.

 

The third request is to have a pole sign.  The Zoning Ordinance only allows monument signs in Office Service Districts.  The ordinance only allows a height of five feet.

 

The difference between having a monument sign and a pole sign requires a use variance.

 

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 strict compliance with the ordinance would place the sign in the parking lot.  This is a difficult site from a building stand-point.  The trees are in the right-of –way so the property owner cannot cut the trees or move them.   The sign for Rodnick Chiropractic also extends out into the right-of-way.  The right-of-way belongs to the city.  Business Route 10 used to run through the city.  The property will be able to be used for a permitted use under the ordinance.  However, optimal use of the property will not be capable due to the setback and the trees.

 

                       

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

 

      The mental health clinic also uses the Thomas Photography sign as a landmark for their building as it is difficult to see their offices with the trees.  The adjacent property owner’s sign is contained in the right-of-way.  Also, the trees cannot be moved or removed as they belong in the city’s right-of-way. 

 

(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 stated that what is proposed is no different from what has been there for 30 years and was not an obstruction.  Had they left the sign faces up, and the petitioner had just changed the messages on the sign, they could have had the sign.  Since they removed the existing sign, they now have to conform to the ordinance.

 

      (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.

 

      Adjacent properties have more depth or length of frontage available that allow for compliance with the setback requirement.  Based on the existing layout of the parking lot and property, no suitable alternative exists for sign placement.

 

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

 

       The need for the variance is dictated by the layout of the site and existing greenery on and adjacent to the property.  The applicant purchased the property with the full intent of simply re-using the existing sign structure that served the prior business and neighboring businesses well for the past 30 years. 

 

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

 

      The criteria for the use variance is almost identical to that for a dimensional variance.  Can the applicant have a pole sign instead of a monument sign?  The applicant stated the sign would have to be five feet into the parking lot if the variance is not granted.  The applicant’s responses are very similar to those for the dimensional variance.  The right-of-way has changed and we do not know when that happened.  Will the variance alter the natural characteristics of the area?  These circumstances could be seen to be unique as there are few places along Saginaw Road that has total obscuration.  Staff does not think this will alter the character of the area.  The only difference between a monument sign and a pole sign is that there is landscaping required around the base of a monument sign.  The applicant thought that he could re-use the poles and, because the face of the sign was removed, he is not able to do that.  This is only self-created due to the inability to cause the seller to leave the sign there.  Generally speaking, the sign comes with the structure, but not always.

 

      Mr. Steele stated that we will handle each of the variances separately.  Ms. Winland stated they could use the findings of fact in both deliberations.  Mr. Green asked if the ZBA could permit the sign to be placed in the public right-of-way.  Ms. Winland stated they could not.  Their only option is to have the sign moved back to the property line.  The petitioner could approach the city’s Engineering Department and discuss locating the sign in the right-of-way.  There are a few properties on South Saginaw Road who have asked the city to remove the trees in the right-of-way so their signs would be more visible.  Ms. Winland would suggest they ask about removing the trees prior to seeking permission to place the sign in the right-of-way.   The sidewalk is set back an entire lane width.  State highways have fairly wide rights-of-way.  Mr. Lichtenwald asked how long ago did the seller take the sign down.  To lose your non-conforming status, the old structure would have to have been down for 12 months.  Cindy does not know how long the old sign has been down. 

 

      Doug Strock, Vice President of Global Language and Consulting, stated they would like to proceed with a Board of four members.  They are expanding their business.  They closed on the property July 11, 2011.  They started their renovation work right away.  They have spent over $60,000 on renovations to that building.  They have spoken with “Sign Tech” about options for the sign.  The simplest way would be to leave it as it was.  Thomas Photography was still in business right up until the time they took occupancy of the building.  Mr. Strock stated they did ask about the sign at closing and was told that they could still have the sign.

 

      Ms. Winland stated she does not know if the determination could be made that the sign was not  . . .   Cindy will be asking the Building Department, what is the status of the non-conforming structure.

 

      Motion by  Green, seconded by Siemer, to table the motion until the next meeting to get additional information about the legal non-conforming status of the sign poles and to make the determination about the status of the existing sign poles.  Motion passed unanimously.

 

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

            None

 

6.   OLD BUSINESS

            None

 

7.   NEW BUSINESS

      The deadline to submit applications for next month is Friday.  There may or may not be a case.  The November meeting will be on November 15th if we have cases.

 


 

8.   DECISION SHEET SIGNATURES

      a.  11-06 Review Finds of Fact

      b.  11-05 Recorded

 

9.   ADJOURNMENT

      Hearing no further business, the Chairman adjourned the meeting at 7:50 p.m.

 

Respectfully submitted,

Cynthia E. Winland, AICP

Consulting Planner