MINUTES OF THE MEETING OF THE ZONING BOARD OF APPEALS,

TUESDAY, SEPTEMBER 18, 2012

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 three others.

 

2.   APPROVAL OF MINUTES

It was moved by Higgins and supported by Siemer to approve the minutes of the August 21, 2012 meeting.  Motion was approved unanimously 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 Board of Appeals decision criteria in the Zoning Ordinance. The variance is legally recorded with the property and is not transferrable to another parcel. 

 

a.      No. 12-01 – Site Enhancement Services for Olive Garden for a dimensional variance to permit more square footage of wall signage than is permitted and to permit two ground mounted pole signs.  The applicant is asking for a variance of 24.54 square feet to the maximum 150 square feet of wall signage in the Regional Commercial district.  The applicant is also asking for a variance of one additional pole sign, exceeding the maximum permitted ground mounted signs per parcel by one.  The property is located at 6803 Eastman Avenue. 

 

Background: 

 

Ms. Winland showed an aerial photograph of the subject property.  The fairgrounds entrance is to the north, Midland Mall is to the east and the Hampton Inn is to the south.  The request is for three proposed wall signs totaling 174.52 sq. ft.  They are asking for a variance of 24.52 sq. ft. to the permitted 150 sq. ft. for wall signage.  The second request is for an additional ground mounted sign.  The ordinance only permits one ground mounted sign per parcel.  

 

As with all of our requests, there are five criteria that need to be met.

 

(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 site is currently a multi use parcel with retail and food offerings.  The proposed new restaurant will be located on the northeast corner of the property.  This site will be .52 acres in size and will require cross access agreements for parking due to the size of the parcel.  This proposed restaurant could not operate on such a small parcel unless additional easements are allowed.  The additional signage request will allow this parcel to achieve its zoned potential within this plaza.  Also, due to the existing building locations with the center, the proposed restaurant has been situated to accommodate the needs of others within the plaza. 

 

Staff:  This question really asks that, if the variance was not granted, could the property still be used for a permitted purpose.  This property has been used for commercial development for quite some time.

                       

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

 

      Petitioner:  This proposal will provide a greater draw to the existing plaza, so the individual businesses within the plaza and the surrounding area will get increased exposure from individuals travelling the area.  The proposal, if granted, falls within the intent of the ordinance and will not provide an advantage to the proposed Olive Garden.  The wall signage request is approximately 25 square feet over code, but only occupies around 3.5% of the elevation to which it is attached.  The proposed signage is integral to the building design and also essential for providing quality way finding devices to the motoring public.  The request is not excessive and provides harmony with the building design and surrounding area.

 

Staff:  When we look at substantial justice, we measure whether it meets the intent of the ordinance and if it does justice to other properties in the area.  In terms of aesthetics, signs should enhance the aesthetics of the community.  Staff evaluated the wall signage and the ground pole sign separately.  It is staff’s opinion that the additional wall signage is not necessary for exposure of the business in this area. 

 

There is an existing ground mounded pole sign on the property that is 24’ tall and 160 sq. ft. that includes an LED section at the bottom.  This sign is 60% over the square footage permitted and 20% taller than the City allows.  The sign was part of the property when it was annexed into the City in 2002.  Winland showed a dimensioned picture of the sign, indicating that there are roughly 60 sq. ft., of vacant area on this sign now that could be used for the Olive Garden signage, as well as the LED portion of the sign.  An additional sign does not meet the stated aesthetic, safety or equal protection intent and purpose requirements of the zoning ordinance.  It is excessive and unnecessary.

 

(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 proposal is the minimum request over what the code allows for this location to safely and effectively notify the motoring public.  The plaza has multiple access and exit points; signage is necessary to help individuals attempting to navigate this area.  This area is a commercial corridor and individuals expect to see adequate, properly branded businesses.  The requested wall sign relief is approximately 16% over code allowed, but will not look out of balance with the building or the neighboring businesses.  The proposed freestanding sign would meet the ordinance requirements if this was its own lot in the commercial corridor.

 

      Staff:  It is staff’s opinion that no additional signage is necessary beyond what is allowed by the ordinance.  Signage within permitted wall size and using the existing pole sign is sufficient exposure to notify the public of the location of this business.  Research shows that the overall size and height of the sign is not related to the effectiveness of the sign.  An innovative use of the space on the existing ground pole sign would be sufficient for this business.

 

(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.

 

      Petitioner:  This property was designed to have multiple businesses on one parcel.  This is not a typical commercial one tenant pad site, which is prominent in this corridor.  This site is intended for multiple uses and the proposal falls in line with that intent.  This site is also accessible from more than one curb-cut and a motorist could access the plaza from one public/platted road and exit the plaza on a different platted/private road.  This is not typical of other sites along this corridor. 

 

      Staff:  This plaza is going to be accessible from the fairgrounds driveway.  They have agreed to permit an additional curb cut here.  The existing Damon’s drive is going to be closed.  To the south is Saylor Drive, which is an unused access point and will be closed.  There will be another access from the Panera Bread location.  The business will be visible from every direction and every access point.

 

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

 

      Petitioner:  Due to the unusual condition this development presents, the strictest interpretation provides a disadvantage to the success of the Olive Garden Restaurant.  This site is much smaller than most of the lots in the area and a variance for signage would allow this business to be successful without causing any favoritism.  The proposal meets the intent of the ordinance by providing quality way finding devices and not causing harm to the surrounding public.  Motorists need to focus on navigating their vehicle, not searching for a location.  This distracts them from their main objective which is navigating and controlling the vehicle. 

 

      Staff:  Because these are all new signs, this is a self created hardship. 

 

The City has received one written objection to the variance from the Hampton Inn.  He has asked that the ZBA adhere to the requirements of the zoning ordinance.

 

      The frontage of the property is about 265 feet, to the property line.  All the parking will be shared. 

 

      Shawn Smith, 6100 Nimms Parkway, South Bend, Indiana, represented the petitioner.  This particular location is under massive renovations.  Olive Garden should be thought of as an out parcel of this development.  Usually, as an out parcel, they are allowed additional signage.  One additional ground pole sign, which would be permitted if this were on its own parcel.

 

Pole sign comments:  They are changing traffic patterns here as well.  Additional signage is needed to allow the additional traffic to identify the business.  They would like to have their own free standing sign.  They were looking at utilizing the existing Damon’s sign but it is no longer there.  Staff suggested the Olive Garden could utilize the existing ground pole sign.  The property owner wants to use that signage to identify businesses that are behind the Olive Garden in the plaza that cannot be seen from the road.   Smart growth is occurring here with the cross-access and multiple entrances to the site.  They are approximately 1400 feet away from the interchange.  Panera Bread has approximately a 100 sq. ft. pylon sign and 300 sq. ft. of wall signage.  Applebee’s has their own free standing sign. Olive Garden is not asking for that.  The Olive Garden sign will be illuminated.   

 

      Wall sign comments: The front elevation is oriented to the south which will have a 42 sq. ft. sign.  Because this is a shared plaza, they need to draw attention to the Olive Garden building.  The only illuminated portion of this sign is the Olive Garden name. 

 

Mr. Smith stated there are several businesses in the area with free standing signs including Fazoli’s and Logan’s.  The makeup of this particular site and the development here makes this an unusual site.  They are changing some traffic patterns here.  This is the minimum variance request necessary.  It is consistent with Panera Bread and consistent within the corridor. This is a new development with new tenants coming in the area, cross access easements, and they feel the signage is necessary for this unique situation and warrants additional signage.  They do not feel this is self-created as this is new development going into the area.

 

      Mr. Higgins asked how many tenants they expect in the mall area.  Mr. Smith stated he did not know.  Mr. Higgins stated there are 20 slots on the sign.  Mr. Smith stated the developer would like the existing sign to remain as it is.  The Olive Garden is an out-lot and they desire to have their own sign for their business.  The property owner owns this parcel as well as the property to the back and to the side.  The property owner is not here tonight.  The petitioner is his authorized representative. 

 

      If this lot were split to provide Olive Garden its own parcel, it would end up having to be a flag lot, which is not permitted by the ordinance.  If they could have the free standing sign, they would like 100 sq. ft. because that is standard.  Panera Bread is using a sign structure that was there previously.  The Damon’s sign was removed last week.  They do not want to hamper development so they would not like to move their sign down to the southerly part of the property.

 

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

 

                  Findings of Fact:

1.      This is a Regional Commercial zoned property.

2.      One letter was received objecting to additional signage.

3.      The existing pole sign existed when this property was annexed into the city.  It is 24’ high and has 60 square feet of unused area on it now.

4.      There is access to the private drive to the fairgrounds behind the proposed building.

5.      There is no proposed curb cut for a left hand turn into the mall parking lot.

6.      There is access by the signaled intersection, on a separate piece of property.

7.      There is access by a cross drive behind the property in front of the Hampton Inn.

8.      There is 265 feet of frontage on the Olive Garden parcel.

9.      The Damon’s and Mattress Connection signs had to be removed since the buildings were removed.

10.  The property is located at 6803 Eastman Avenue.

11.  150 square feet of wall signage would be permitted and they are asking for 174 sq. ft.

12.  The restaurant will be located at the northeast portion of the site. The front of the building will be facing south.

13.  Signage is available at the freeway exit for way-finding signs.

14.  The speed limit on Eastman Avenue is 45 mph.

 

It was moved by Higgins and supported by Green to approve Petition No. 12-01 based on the findings of fact for an area/dimension variance at 6803 Eastman Avenue for a variance of 24.52 square feet to the maximum 150 square feet of wall signage. 

 

Mr. Green stated the main access to the building will be south facing.  As people head south on Eastman, wall signage is needed on the back side to identify the property and feels it is appropriate to grant additional wall signage.

 

Mr. Higgins stated Olive Garden has not met any of the five criteria.  Mr. Lichtenwald agrees. Mr. Siemer stated he also feels the criteria have not been met.  They will be a destination point.  Mr. Steele agrees with Mr. Higgins, Mr. Lichtenwald and Mr. Siemer.  He thinks there is nothing unique and it is self created.  The parcel has been that way for 15 years or so.  Mr. Siemer stated he is very happy to see an Olive Garden in the community, but they should have no advantage to their competitors.

 

Vote on the motion: 

 

Green:        Yes

Higgins:     No

Lichtenwald:  No

Siemer:      No

Steele:        No

 

Moved by Higgins, supported by Lichtenwald, to permit a second pole sign, located 200 feet south of the existing pole sign on this property and advertising the Olive Garden. 

Mr. Green stated that people coming from the south will be able o see the sign. The objective is to draw people to the restaurant.  Having the sign at the south end of the property is near the traffic control device.  Ms. Winland stated that requiring a 200 foot spacing from the existing sign may interfere with the parking lot and will require removal of at least two spaces. She is not sure if this can be done based on the site plan requirements. Mr. Higgins feels this is a unique situation.  If he was coming into the city and looking for the Oliver Garden, it would be very useful to him.  Mr. Siemer stated this is a safety issue here.  

 

Shawn Smith, 6001 Nimms Parkway, South Bend, Indiana, was called back up by the Board.  Mr. Steele asked if there were any restrictions in the lease agreement regarding signage. Mr. Smith stated they already have a lease agreement that includes the separate free standing sign, contingent upon approval by the municipality. They want to place the sign at the ingress/egress point.  

 

Mr. Higgins discussed tabling the issue and requesting the owner of the property to attend the meeting.  Ms. Winland stated that the petitioner is representing the owner as his agent and is authorized to speak for him. 

 

Mr. Higgins stated discussing the criteria is difficult on this case.  It is a safety issue.  Mr. Siemer stated there will be less driver confusion.  It is unique, a safety issue, there is an existing shopping center in the back and is a multi-use site.  Mr. Green stated the second sign is the same size that would be permitted to adjacent property owners.  Everyone would be entitled to the same signage.  Mr. Higgins stated they are meeting the zoning ordinance except for the second sign with a 200 ft. separation and 100 sq. ft. maximum size. 

 

                  Vote on the motion:

      Steele:  Yes

      Lichtenwald: Yes

      Green:  Yes

      Higgins:  Yes

      Siemer:  Yes

 

      The motion to approve Petition 12-01 was approved by a vote of 5-0. 

 

  1. No. 12-08 – Valley City Sign for a variance to the height and size of a ground mounted sign.  The applicant is requesting a variance of 3.33 feet to the height of the sign and a 31.75 square foot variance to the size of the sign.  The property is zoned Office Service and is located at 7101 West Wackerly Street.  

 

Background: 

 

Ms. Winland showed the area map.  The property is west of Stark Road and north of N. Saginaw Road.  Most of the parcel is wooded.  It has two driveways.  The existing signage on this parcel is the shingle style.  The proposed sign is 100 inches tall and 63 inches wide.  The applicant has proposed that it be next to the driveway, along an open ditch, at the western driveway.  The front of the property has open drainage, which is unusual for the city.  The approach, from the east, has a significant amount of tree cover. 

 

(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:  Signs are used by the public to find and identify a business.  With a 12 square foot, 5’ tall sign requirement, there would not be adequate visibility for patients and visitors to see the sign easily from the road as they travel by.

 

Staff:  The parcel has been used for office use and will continue to be able to do so even without the variance.

                       

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

 

      Petitioner:  A variance will allow the owner to install an adequately sized sign for patients, visitors, etc. to be able to see the sign easily and identify the location as they drive down the road.  This does not affect other property owners in the city limits, as there are not any in the immediate vicinity of this office.

 

Staff:  There is an industrial use directly across, which is a lumber yard.  There is a dog training facility that remains in Lincoln Township.  The new McKay Press is zoned Industrial. There are no other neighbors.  The ordinance is intended to prevent excessive signage or things that are out of context with the surrounding structures.  Staff feels this is a safety issue.  The larger, taller sign is not out of scale with the industrial uses the abut the property.  The applicant is permitted two ground pole signs due to the frontage of the property and has chosen to have one larger sign.  Instead of two 12 sq. ft. signs, they have chosen to ask for a 43 sq. ft. sign.

 

(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:  We believe this to be the minimum size needed to properly identify the building on this property. 

 

      Staff:  There is a ditch and foliage growing out of the ditch.  This is out of the applicant’s control.  The applicant could cut down some of the trees, coming around the corner.  Staff feels it meets the safety and fairness portions of the ordinance, as the applicant is trading the square footage of signage.  The applicant is not in control of what might grow in front of the sign.  There are only a few places in the city that have open ditches.   

 

      The zoning ordinance requires a ground mounted sign in this zoning district.  If the Board grants the height, they need to grant at least part of the requested increase in area or the sign will only be 1.5 feet wide. A 12 sq. ft. sign, 8.33 feet high would be long and narrow and make it difficult to put a message on it.  We’d also recommend that the address is moved to the top of the sign.  The lower portion of the sign will be in the weeds or the snow.

 

(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.

 

      Petitioner:  The unique circumstances are that the use is zoned OS, which is correct for the use.  However, most of the other OS businesses are on city roads with sidewalks and very few visual obstacles.  This particular property is heavily wooded on a curved country road, with a large drainage ditch running along the front of the property. 

 

      Staff:  There are very few properties in the city on heavily wooded roads with drainage ditches running along the front of the property.  This situation is unique and not related to the zoning of the property.

 

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

 

      Petitioner:  The need for the variance stems from the wooded nature of the lot, along with the drainage ditch along the roadway.  This causes the lack of visibility due to the trees and the distance between the property line and the roadway (caused by the ditch).

 

      Staff:  The current signage on the property is not in conformance with the zoning ordinance, but it existed when the property was annexed into the city.  The property is heavily wooded and has a ditch in front of it.  Lack of visibility indicates that the situation was not self-created. 

 

      Julie Couturier, Valley City Sign, 5009 West River Drive, Comstock Park, MI stated they are asking for both the height and area variance.  Visibility is and has been an issue to the occupants of this building.  This is why they are asking for the larger sign.  The signs would be five feet behind the property line, which is behind the ditch, according to the ordinance.  Option 1 would be by the west driveway.  Option two would be to place the sign in between the two driveways.  Ms. Couturier showed some other Office Service zoned properties in the city of Midland and the size of their signs.  They do not have the same frontage with the ditch in the front yard. 

 

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

 

                  Findings of Fact:

 

1.      This is an Office Service zoned.

2.      Annexed in 2002 – the existing signage was there.

3.      The property is heavily wooded.

4.      There is a ditch in front of the property.

5.      No letters have been received in favor or in opposition.

6.      The legal speed limit on West Wackerly Street is 45 mph.

7.      Those traveling west bound on West Wackerly Street are negotiating transverse curves.

8.      The property is a corner lot.

9.      It is located at 7101 West Wackerly Street.

10.  It has a frontage of 1260 feet on West Wackerly Street.

 

It was moved by Higgins and supported by Green to approve Petition No. 12-08 based on the findings of fact for an area/dimension variance at 7101 West Wackerly Street for a variance of 3.33 feet to the height of the sign and a 31.75 square foot variance to the size of the sign.

 

Mr. Siemer feels the property is unique and should be approved based on this, and the curves on road.  Mr. Higgins stated he does not think it meets criteria “a” or criteria “c”.  They could ask for a 12 sq. ft. variance on a pole instead of the monument sign.

 

Mr. Green stated he has difficulty with the unique circumstances.  The property, at one time, was in the township and is now in the city.  The speed of the traffic and curves make it difficult for patrons to find the location.  There is nothing necessarily unique about the property as there are detention basins in the city that have growth in the summer.

 

Mr. Lichtenwald stated he would have liked to see something like a 30 sq. ft. sign.  He is not sure the minimum criteria have been met here.

 

Julie Couturier, 5009 West River Drive, Comstock Park, MI, stated this is a unique property to the Office Service District.  When you go back five feet behind the ditch area, you are 30+ feet off the road.  That is why the printing needs to be so large.  Driving down the road at 45 mph, that sign will be difficult to see.  You still need to put the services as well as the name of the businesses on the sign.  This could be a safety issue.  The sign will be approximately 30 feet from the edge of the road.  The height of the sign is just over eight feet.  They do not oppose trimming the trees, they just do not want to remove the trees. 

 

The motion was amended by Steele to add a condition that trees are trimmed to the extent necessary seconded by Siemer.  Amendment passed 3-2 – (Green and Higgins voted “no”).

 

The motion was amended by Steele to add a condition that the street address is visible on the top half of the sign and not obscured by snow.  Mr. Higgins seconded. No vote was taken on this amendment.

 

                  Vote on the motion:

      Steele:  Yes

      Lichtenwald:  Yes

      Green:  No

      Higgins:  No

      Siemer:  Yes

 

      The motion to approve Petition 12-08 was approved by a vote of 3-2. 

 

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

None

 

5.   OLD BUSINESS

      None

 

6.   NEW BUSINESS

      None

 

7.   DECISION SHEET SIGNATURES

      a.  12-07 Review Findings of Fact

      b.  12-06 Recorded

 

8.   ADJOURNMENT

      Hearing no further business, the Chairman adjourned the meeting at 9:11 p.m.

 

Respectfully submitted,

Cynthia E. Winland, AICP

Consulting Planner