1.      ROLL CALL

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

ABSENT:         Board Members – Higgins

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



It was moved by Siemer and supported by Green to approve the minutes of the October 18, 2011 meeting.  Motion was unanimously approved as presented.



The Chairman explained the public hearing procedures and how the Board decides if the variance request is approved based on the five Zoning Board of Appeals criteria in the Zoning Ordinance.  Mr. Steele reinforced that the variance is applicable and tied to the property and is not transferrable to another property despite the ownership.


a.      No. 12-02 – Stuart Wilson for a dimensional variance to the rear setback to permit construction of an office building.  The applicant is asking for a variance of 5’ to the required 25’ minimum rear yard setback in the Office Service district.  The property is located at 2417 W. Wackerly Street. 



Ms. Winland showed an aerial photograph of the subject property.  It is located at 2417 W. Wackerly Street.  The development is actually going to face Schade Drive.  The narrowest portion of the lot is considered the front lot and therefore the rear yard setback is measured from the eastern property line.   There are two parcels that are developed single-family residential but are zoned Office Service to the south on the east side of Schade.  Across Schade Drive is multi-family residential, developed as condominiums.   The US-10 exit ramp is on the north side of W. Wackerly Street from the subject property. 


The structure in the staff report is listed as 3,220 square feet, which requires 11 parking spaces.  This figure is used because a previous Administrative approval of this site only required 11 spaces but permitted up to 26 parking spaces. The parking determination was based upon the footprint of the building.  The building actually has 4,930 square feet of floor area and would require 16 spaces, including handicap spaces.  The site plan shows 24 spaces. There are two handicap parking spaces shown where only one is required. 


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?


Petitioner: The petitioner has noted that the 25 feet required in the back yard leaves the front of the building all in concrete due to sidewalk and entrance requirements.  Moving the building back five feet will allow room for some trees. 


Staff:  The first test is whether you can use the property for a permitted purpose.  The parcel is able to be used for Office Service uses and still comply with the required dimensional standards.  The structure could be moved west five feet and still meet all of the ordinances requirements.


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


      Petitioner:  The petitioner has noted that the variance would do substantial justice to the applicant by shading the warm west faηade of the building, cooling the building from summer sun and saving energy. 


Staff:  Substantial justice is a measure of fairness, which asks, if this variance is granted will it be fair to all others impacted?  It is unlikely that this variance if granted, will impact anyone in the vicinity.  The property to the east, abutting the rear yard, is vacant and likely to remain vacant, given the freeway exit location.


(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.


      Petitioner:  The petitioner stated that the minimum variance requested of five feet will add the needed dimension to allow a small tree to survive in the sidewalk on the west side of the building. 


      Staff:  Staff noted that there are design options for the site that do not require a variance and still meet the requirement of 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.


      Staff:  There is nothing unique about the parcel itself.  However, they would say the parcel to the east is less likely to be developed for another use.


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


      Staff:  The ordinance could be complied with if the building was located five feet further to the west and the parking on the west side of the site was eliminated.  This would leave room for the landscaped area in front of the building as shown and on the west side of the site, abutting Schade Drive and within view of the adjacent residential area.


At one time, the entire area zoned Office Service along W. Wackerly Street was zoned RA-1.  This is very unusual.  The house to the south was built in 1996.  Correspondence was received from two neighbors in opposition to the petition.


Stuart Wilson, 5608 Sturgeon Avenue, Carrie McPhillips, 2804 Dartmouth Drive.  Carrie is the architect for the building.  Mr. Wilson stated he has 15 employees and he needs the additional parking spaces.  If you take away four spaces to meet the setback requirements and the two handicap spaces, he would only have 18 spaces.  He does not want his clients to have to park out on the street.


Trees will make it more aesthetically pleasing for the neighborhood.  The 15 employees are there most of the day during business hours so they will use most of the parking spaces.  Mr. Wilson stated his business is growing and he wants to plan for an increasing number of clients.   If they get much snow in the winter, he thinks he will lose a parking space to snow.  The basement and second floor must not be more than 3000 sq. ft. in order for them not to have an elevator in the facility.


Matt Sczepanski, 6202 Schade Drive, stated he lives next door to the property.  He would like to echo the letter sent by his two neighbors.  It is important to maintain the integrity of this parcel in order not to disrupt the neighborhood.  The neighbor to the south of him and his property are both zoned Office Service.  Mr. Sczepanski asked if he can petition to have his property rezoned to Residential A-1 and if that would affect the decision tonight.  Ms. Winland stated that would not be considered tonight as there are notification requirements and a public hearing required. 


The third test indicated there are other options for design of the space.  There are about a dozen trees on the property right now.  Those do help up break up some of the noise from US-10. If they move the building back, it will have a greater impact on their back yard. 


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


                  Findings of Fact:

1.      The property is zoned OS.

2.      As OS, a 25 foot setback is required.

3.      The applicant has requested a variance of five feet.

4.   There was one letter of opposition from two neighbors and one additional neighbor spoke in opposition to this request.

5.   The number of parking places will be 26 maximum, where 24 are requested.

6.   The access would be off Schade Drive, as opposed to being off W. Wackerly Street.

7.   The two properties to the south are zoned office service, but developed residential.

8.   The property is located at 2417 W. Wackerly Street.

9.   It is 4,930 sq. ft.

10. The property to the east is currently green space owned by the Midland Area Community Foundation.

11. The ordinance requires between 16 and 19 parking spaces for the size of the structure.

12. The property was changed from residential to office service in 1988.

13. Mr. Wilson states he currently has 15 employees and they will require 15 parking spaces at any one time.

14. The east side of the property is considered the rear of the property.


It was moved by Siemer and supported by Lichtenwald to approve Petition No. 12-02 based on the findings of fact for an area/dimension variance at 2417 West Wackerly Street for a variance of 5’ to the required 25’ minimum rear yard setback in the Office Service district. 


Mr. Siemer stated he does not find any burden on the petitioner if he did make that move.  Moving the building five feet so it was within the guidelines of the ordinance would be better for his neighbors.  Mr. Siemer cannot get by Criteria A. 


Mr. Lichtenwald stated the first criteria is not met – it is not unnecessarily burdensome to comply with the ordinance.  The petitioner would only have to give up four spaces. Mr. Lichtenwald also cannot get by the 4th and 5th criteria.  This is truly self created.  Every tree on that lot will come down for this development.  Also, there is nothing unique about this property.


Mr. Pnacek stated he cannot get past the first criteria.  He thinks there are other options to comply with the ordinance.  He understands that there was an agreement prior to this application, but today, the maximum parking allowed would be 19 spaces.


Mr. Green stated he has an issue with the first criteria.  Options are present using the criteria that would maintain the integrity of the zoning regulations.  The variance is the minimum required to achieve his purpose.  There is nothing unique about this property.  The need for a variance is a self-created situation that has been a result of the desire to modify the existing zoning regulations.


Mr. Steele stated he agrees with his fellow Board members.  There are options available to the petitioner.  He does definitely think this is self-created and the building could go up as it is.


                  Vote on the motion:


      Steele:  No

      Lichtenwald:  No

      Green:  No

      Siemer:  No

      Pnacek:  No


                  The motion to approve Petition 12-02 was denied by a vote of 5-0. 


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







Cindy Winland introduced the new Planning Director, Brad Kaye.  He has comes from Traverse City and worked in the private sector prior to that. 


Board members received copies of revised sections of the Zoning Ordnance updates that were done recently by the Planning Commission and City Council.  Ms. Winland reviewed the changes that had been made so each section.



      a.  11-07 Review Findings of Fact



      Hearing no further business, the Chairman adjourned the meeting at 7:35 p.m.


Respectfully submitted,

Cynthia E. Winland, AICP

Consulting Planner