MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,
TUESDAY, APRIL 17, 2012
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. APPROVAL OF MINUTES
It was moved by Siemer and supported by Lichtenwald to approve the minutes of the March 20, 2012 meeting. Motion was unanimously approved as presented.
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 Board of Appeals criteria in the Zoning Ordinance. Mr. Steele reinforced that the variance is legally recorded with the property and is not transferrable and does not change, despite the ownership of the property.
a. No. 12-03 – Forward Corporation for a variance to the maximum of 20 foot candles of lighting permitted in a canopy. The applicant is asking for a variance of 27.3, for a total foot candles of 47.3. The property is zoned Regional Commercial and is located at 2029 South Saginaw Road.
Background: Ms. Winland showed a GIS map of the subject property. It is located at the corner of Saginaw Road and Patrick Road, owned by the Forward Corporation. The request is to have canopy lighting over the gas tanks in excess of the permitted 20 foot candles, measured five feet above the ground. They are asking for a variance of 27.3 foot candles for a total of 47.3 foot candles.
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 or render conformity unnecessarily burdensome?
Petitioner: This property has been used as a gas station for quite some time. The petitioner has noted that they will either have to install lights that will make the site darker at night or replace lighting LED lights that are less expensive to operate.
Staff: LED lighting provides more light and therefore shows more foot candles of light at five feet from the ground. We are not at liberty to change the standard, even though we think the standard is not correct.
(2) The variance will do substantial justice to the applicant as well as to other property owners.
Petitioner: This candle power was adopted in 2004 but there has not been a new gas station open in the city since that date.
Staff: All existing gas stations that would like to change the lighting in their canopy would have to meet these standards. There are LED fixtures that will reduce glare.
(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: They will be reducing the foot candles of the current lights substantially with the new fixtures.
Staff: There are other manufacturers who can meet the standards with their LED lighting. When you change the kind of lighting, you get more light per foot candle.
(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 this gas station compared to others in the community. A search of the police reports over the previous five years indicates that there have been no illegal activities outside the station that could be attributed to inadequate lighting. The most common event is categorized as a “suspicious situation”. The property itself is not unique.
(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 has been changed since the gas station was constructed. The applicant has chosen to change lighting for justifiable reasons, however, there is lighting available that meets the intent of the ordinance as well as the maximum foot candle permitted in the ordinance, and at the same time is adequate for the use, reduces glare, saves energy, and does not bleed onto neighboring sites.
The original proposal was for 84 diode LED’s. The manufacturer ran the numbers using 64 diode LEDs and the resulting light is roughly the same as the current lighting. The foot candles that they have right now are more than the foot candles they are proposing, on average.
Mr. Steele asked how the original 20 foot candles is determined at five feet from the ground. Ms. Winland stated she cannot say how the original brightness was calculated. Most communities that regulate light have light zones. The light zone and associated regulations are based on the surrounding uses. In those ordinances, the foot candles vary from 17 up to 65. The average is about 30 foot candles. The city has not had any comment from adjacent businesses.
Representatives of the Petitioner: David Gould, 3435 Winkay Place, Bay City, Michigan, President, Forward Corporation; David Butler, 3205 James Drive, Midland, property manager. The 84 diode lights were the ones that were installed is some of their other facilities and were acceptable in their municipalities. There is some corrosion going in their lights and the manufacturer suggested they replace all of their light fixtures. They have already purchased the 84 diode fixtures. Consumers Energy has a rebate program and these fixtures meet the requirements for the rebate program.
Mr. Butler stated that, item (B), the variance will do substantial justice to the applicant. There has been no new gas station in the City of Midland since 2004 when the ordinance was changed. By changing the light fixtures the glare will be eliminated at night and the light will be more directed under the canopy. There is a stamp of approval from the International Dark Sky Association on these fixtures.
Mr. Gould stated that he has a letter stating that 20 foot candles is very low for a gas station and that the author considers it an unsafe condition. Mr. Butler stated that LSI is the standard manufacturer for gas station lighting throughout the country.
Item “D”, if you are driving at night, if you see a station that is dark, you will go toward a better lighted station for safety purposes. For use by a gas station, the lighting has to meet minimum standards. People will avoid a site that is dark. Especially females and younger people will not stop at a darker station at night.
In summary, they have two choices – they either need a variance to allow them to install
energy efficient lighting. Otherwise, they will have to replace their fixtures with the same thing they have. It will not move them forward in any energy efficiency.
Mr. Steele asked how you figure foot candles. Neither Mr. Gould nor Mr. Butler could explain that issue. Mr. Butler measured the lighting in the hallway and he stated it is 20 foot candles in the hallway coming in to the City Council Chambers. They were not aware of another manufacturer for lighting for service stations. The 64 diode would give them a 44.5 foot candle illumination. They have already purchased the other fixtures. They have not installed them yet. The petitioners have contacted most of the other gas stations in town and they are all using the old style of lighting. They would be the darkest station in town, by far.
Mr. Lichtenwald asked that, if they are replacing lighting, could they change the lighting to meet the same number of foot candles they have now? Cindy stated that if you are changing a non-conforming use, you must bring it into conformance if possible, rather than just making it less non-conforming.
Mr. Green asked the hours of operation of that station. Mr. Butler stated 5:00 a.m. until 11:00 p.m. In the winter, they need more lighting earlier in the day. In the summer, it stays light later at night. The clerks inside the station need to be able to see the customers at the pumps.
The ZBA adjourned for four minutes to take a look at the foot candle lighting in the hallway at 7:15. Mr. Steele and Mr. Siemer adjourned to the hallway. Mr. Lichtenwald, Mr. Green and Mr. Higgins remained in Council Chambers. The meeting reconvened at 7:20.
No one else spoke either in favor of or in opposition to this request.
Findings of Fact:
1. The property is zoned RC.
2. It is on the corner of Saginaw and E. Patrick Road.
3. The existing maximum foot candles is 50.8 and the average is 30.12.
4. According to the petitioner, if they use a 64 diode foot candle, they would have a maximum foot candle of 44.5.
5. The petitioner stated that the hours of operation are from 5:00 a.m. to 11:00 p.m.
6. It is a joint establishment of a gas station and a fast food restaurant on the same property.
It was moved by Higgins and supported by Siemer to approve Petition No. 12-03 based on the findings of fact for an area/dimension variance at 2029 South Saginaw Road for a variance of 27.3 for a total foot candle of 47.3. The property is zoned Regional Commercial.
Mr. Higgins does not feel they met any of the criteria. If anything can be done, the ordinance will have to be changed. Legislating change is not our job. They do not meet any of the criteria.
Mr. Green stated it is not burdensome to comply with the zoning regulations. It would do justice to the applicant. He has no major issue with criteria “c”. There is nothing unique about this property. He supports what Jack said – they are not a legislative body. There are other avenues to change the Zoning Ordinance.
Mr. Siemer stated the station is open 18 hours per day and only about five of those are dark. It is not the job of the ZBA to write the regulations, but to administer the ordinance as it has been written for them.
Mr. Lichtenwald agrees with Mr. Higgins and his fellow commissioners. Mr. Steele agrees with all the other Board members. They have to go by the ordinance.
Vote on the motion:
The motion to approve Petition 12-03 was denied by a vote of 5-0.
4. PUBLIC COMMENTS (not related to items on the agenda)
5. OLD BUSINESS
6. NEW BUSINESS
We have had a request to distribute packets by e-mail. Mr. Siemer stated he would like to get a hard copy. He cannot print it out to the quality that it is sent by the city. Mr. Green stated he can get his by e-mail.
7. DECISION SHEET SIGNATURES
a. 12-03 Review Findings of Fact
Hearing no further business, the Chairman adjourned the meeting at 7:30 p.m.
Cynthia E. Winland, AICP