1.      ROLL CALL

PRESENT:         Board Members - Green, Higgins, Holthof, Lichtenwald, Pnacek and Steele

ABSENT:            Board Member – Siemer

OTHERS PRESENT:  Cindy Winland, Consulting Planner, Jeff Burdick, Community Development Planner and six others.



It was moved by Higgins and supported by Lichtenwald to approve the minutes of the January 15, 2013 meeting.  Motion was approved unanimously as presented.



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. 


Chairman Steele noted that Case No. 13-02 poses a conflict of interest to him and that he will recuse himself from this case.  Hank Holthof, an alternate member, will take his place as a voting member for this case. 


a.      No. 13-02 – Michael McKee for a use variance seeking to permit a commercial vehicle with a rated capacity greater than one (1) ton to be parked on a lot located in a residential zoning district for a period not to exceed forty-eight (48) hours.  Section 5.01.E of the City of Midland Zoning Ordinance currently prohibits vehicles having a rating capacity greater than one (1) ton from being parked on a lot in a residential zoning district.  The property is zoned single family residential district RA-1 and is located at 5212 Cortland Street. 



Ms. Winland explained that this case is a request for a use variance.  If granted, it would allow a use in the RA-1 District that would normally not be permitted.  She presented a picture of the property, which is improved with a single-family house.  The request by the property owner is to add an additional use to this property that would allow a commercial vehicle of greater than one ton in carrying capacity to be parked on the property for greater than 48 hours. 


Ms. Winland informed the Board that a use variance has standards that it must meet that are different than the standards of a dimensional variance.  She also noted that, in order for a use variance to be granted, it must receive an approval vote from four out of five voting Board members.  She presented a map that illustrated property owners on the same block as the subject property that have shown support for this use variance request and noted that the Planning Department received one letter from a property owner on the block that opposes this request. 


(1)  The property can be reasonably used for any purpose permitted in the zoning district without a variance.   

Anne McKee, the petitioner’s wife, stated that the Zoning Ordinance does not permit her husband to park the cab of his semi in their driveway


(2) The unique circumstances peculiar to the property that are not generally applicable in the area or to other properties in the same zoning district. 

        The nature of the petitioner’s job requires him to park a commercial vehicle in his driveway to avoid the situation of having to be dropped off or picked up by his family at an off-site location at odd hours of the night when his shift is beginning or ending. 


(3) The variance will alter the essential character of the area.  In determining whether the effect the variance will have on the character of the area, the established type and pattern of land uses in the area and the natural characteristics of the site and surrounding area will be considered. 

        Mrs. McKee stated that the commercial vehicle would not alter the essential character of the neighborhood.  She noted that the vehicle does not block the sidewalk when parked in their driveway. 


(4) Has the problem and resulting need for the variance not been self-created by the applicant? 

        Mrs. McKee stated that this vehicle has been parked in the driveway for nine months with no issues.  She noted that there are recreational vehicles, and other large vehicles that are not considered commercial, parked in driveways throughout the City.  She stated that a commercial vehicle is not clearly defined in the Zoning Ordinance and that when her husband is not hauling a load with this vehicle, it is not considered a commercial vehicle but a personal vehicle. 



Mr. Higgins asked if it is a state law that a commercial vehicle, such as a semi truck, is not considered commercial when it is not carrying a load.  Mrs. McKee did not know if this was a state law.  Mr. Higgins noted the vagueness of the commercial vehicle definition in the Zoning Ordinance and asked about tabling this case so that the Planning Department could research the definition of a commercial vehicle.  Ms. Winland replied that it is clear from the ordinance that if a vehicle is over one ton in rated capacity, then it is considered commercial.  She added that the licensing of the vehicle could contribute to its definition.  Mr. Higgins asked Mrs. McKee if there is signage on the vehicle making it appear commercial and if the vehicle is commercially licensed.  Mrs. McKee answered yes to both questions. 


Debbie Shaffer, who lives across the street, stated that thinks it’s a hardship for Mr. McKee to have to get his family up in the middle of the night to pick him up or drop him off at his truck.  She noted that the truck is very quiet and that she doesn’t consider it an eyesore. 


No one spoke in opposition of request. 


Findings of Fact:

1.       The zoning of the property is RA-1.

2.       The vehicle in question is a commercial vehicle as defined by the Zoning Ordinance. 

3.       The vehicle in question is the cab of a semi trailer.

4.       The weight of the vehicle is unknown. 

5.       Residents have lived in the house for almost one year.

6.       Several nearby neighbors do not have an issue with the parking of the commercial vehicle. 

7.       The vehicle will fit in the existing driveway without encroaching over sidewalk. 

8.       There are nine neighbors in support and one letter in opposition. 


It was moved by Higgins and supported by Lichtenwald to approve Petition No. 13-02 based on the findings of fact for a use variance at 5212 Cortland Street to permit a commercial vehicle with a rated capacity greater than one (1) ton to be parked on a lot located in a residential zoning district for a period not to exceed seventy-two (72) hours. 


Holthof requested a friendly amendment to the motion to limit the period to forty-eight (48) hours.  Higgins supported the amendment and it was seconded by Lichtenwald.  Each Board of Appeals member noted that they could not support the petition do to not meeting the standards by which a use variance may be granted as outlined in the zoning ordinance.


Vote on the motion: 

Green:                  No

Higgins:               No

Holthof:               No

Lichtenwald:     No

Pnacek:               No

Steele:                  (abstain)

        The motion to approve Petition 13-02 was denied by a vote of 5-0. 


b.      No. 13-03 – Eco Bio Plastics Midland and Gerace Inc. for a variance seeking ad additional sign, pursuant to Table 8.2 of the City of Midland Zoning Ordinance.  The application seeks to add a sign to identify Eco Bio Plastics Midland, a use accessible through Gerace property, but without road frontage.  The property is zoned Industrial B and is located at 4037 Eastman Avenue.  WITHDRAWN 


c.       No. 13-04 – Jane Ouderkirk on behalf of the Council on Domestic Violence (Shelterhouse) for a variance from Sections 3.03.B.1 and 3.03.B.3 of the City of Midland Zoning Ordinance that currently prohibits accessory buildings in the front yard and that limits the maximum size of accessory buildings.  The application seeks to permit the construction of a storage facility measuring up to forty (40) feet by sixty (60) feet in size located between the front of the existing residential structure and Isabella Street.  The property is zoned multiple-family Residential District RB and is located at 3115 Isabella Street. 



Ms. Winland stated that this request is for two different dimensional variances.  Shelterhouse wishes to locate a 2,400 square foot pole barn storage structure in the front yard of the property, which required a dimensional variance.  In addition, the size of the proposed accessory structure and the existing accessory structures on the property exceeds the 2,138 square feet of useable residential floor area on the first floor of the shelter residence on the site.  Therefore, and additional dimension variance is needed for the construction of the proposed accessory structure.  Ms. Winland explained that the rear of the property is not buildable, as it is almost entirely within the floodplain and is marked by a steep slope down to the river.      


(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?

Paul Avery, the maintenance supervisor at Shelterhouse, stated that a much needed storage building would not be able to be built to the rear of the property due to the existence of a floodplain. 


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

        Mr. Avery reiterated that the proposed storage building is very much needed and that it would be used to store personal items, furniture and other donated household items that can be used by the clients of Shelterhouse, who are victims of domestic violence and often arrive at Shelterhouse with very little provisions. 


(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.

        Mr. Avery noted that the size of the proposed building is the smallest possible to accommodate the growing need of Shelterhouse.  He stated that last year, there was a 12% increase in number of people served by the agency. 


(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.

        Mr. Avery stated that the primary structures are set back quite a distance from the road, allowing very little room to the rear of the structures for additional buildings. 


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

        Mr. Avery stated that the need for a variance is dictated by the large setback of the building from the road and that this was created by the original developer of the property. 



Ms. Winland noted that two nearby property owners wrote letters in support of this variance request. 


Mr. Higgins asked Mr. Avery to explain the need for a 2,400 square foot accessory building.  Mr. Avery reiterated that Shelterhouse receives many generous donations and does not have enough room to store these items.  Mr. Higgins asked Mr. Avery how this size of a building was decided upon.  Mr. Avery replied that a building of this size is desired because of the increasing amount of clients that Shelterhouse is serving.  Mr. Green asked if this space is to serve as storage space for clients or for general storage.  Mr. Avery replied that it would be used for both purposes.  Mr. Green asked if the storage building could be constructed on the west side of the property.  Mr. Avery stated that this would be very expensive, as this area is steep and significant fill would be needed for the site.  Mr. Steele asked if offsite storage is utilized by Shelterhouse.  Mr. Avery replied that offsite storage is used on occasion.    


Mike Sterling, a board member of Shelterhouse spoke in favor of this request. 


Kristin Riddle a volunteer at Shelterhouse and architect for Three Rivers Corporation, the contractor for this project, spoke in favor of request.  She stated that new storage is very much needed.  Mr. Steele asked Ms. Riddle how the interior of the storage building would be designed.  Ms. Riddle replied that the interior would most likely be sectioned off for client storage space and contains a larger area for general storage. 


No one spoke in opposition to this request.


Findings of Fact:

1.      The property is zoned Residential B. 

2.      The topography of the site and the existence of the floodplain render the rear yard unbuildable.

3.      The proposed accessory structure will be well-shielded from the road.

4.      The lot is just over 5 acres.

5.      The Planning Department received two letters in support of this request.

6.      The first floor residential portion of the principal building is 2,138 square feet.

7.      The proposed structure is 40x60.

8.      The dimensional variance for accessory structure size is approximately 1,100 square feet.

9.      A 326 square foot shed on the property will be removed.

10. An 864 square foot garage is currently located on the site. 

11. The Planning Commission heard no opposition to this proposal.


It was moved by Higgins and supported by Pnacek to approve Petition No. 13-04 based on the findings of fact for an area/dimension variance at 3115 Isabella Street to permit the construction of a storage facility measuring up to forty (40) feet by sixty (60) feet in size located between the front of the existing residential structure and Isabella Street with the condition that the trailer and 300 square foot outbuilding currently located on the site be removed. 


Vote on the motion: 

Green:                  No

Higgins:               Yes

Lichtenwald:     No

Pnacek:               Yes

Steele:                  Yes

        The motion to approve Petition 13-04 was approved by a vote of 3-2. 


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







        April 24 ZBA meeting date:  Ms. Winland requested that the commission consider a different date for the April ZBA meeting due to staff attending a conference.  It is too early to know if there will be any items for the April meeting.  A decision on an April date can be made at the March ZBA meeting. Board member Jon Steele asked Jeff Burdick to email the ZBA roster contact sheet to members in case any corrections need to be made.



      a. 13-01 Review Findings of Fact

      b. 12-09 Recorded



      Hearing no further business, the Chairman adjourned the meeting at 8:24 p.m.


Respectfully submitted,

Cynthia E. Winland, AICP

Consulting Planner