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Mt. Pleasant Zoning Board of Appeals
September 22, 2004I. Members Present: Benison, Curtiss, Staples, Tolas
Members Absent: Derry, Heydenburg, Murray,
Others Present: Brian Kench, Tony Kulick, Steve Martineau, Becky Murphy, Appellants and several community members.
II. Petitions and Communications
Tolas called the meeting to order at approximately 7:05 p.m. and explained the procedure for the hearing to the appellants. Appellants will be called forward to state their case. The Board will then ask questions if they desire. The public hearing will be opened and those who wish to speak will be allowed five minutes to speak once. The public hearing will then be closed. Any correspondence received will be shared with the Board. The Board will enter into discussion. Whenever possible, motions will be made in the positive. It takes four positive votes to approve a request. Any denied requests will have to wait five years before being brought before the Board again. Tolas explained that the Board would be hearing two cases. Because only four members were in attendance, Tolas explained that appellants would have the option of tabling their case until a full board (5 members is considered a full board) was present.
Case #9-2004 – 414 Pine Street - Benjamin and Julie Kolly - request for a variance from Section 154.020(1) of the Zoning Ordinance.
Mr. Kolly explained to the Board his desire to build a 3 1/2 - 4 car garage to store both of his vehicles, a boat and snowmobile trailer and to basically be able to keep his yard clear. Mr. Kolly stated the garage would be built using the same siding, windows and roofing material as was on the house and indicated it would increase the value of the property and improve the lot. Mr. Kolly indicated he had pictures to share with the board and also a letter from a neighbor who supported his project but who was unable to attend the meeting.
Staples asked about the pile of dirt that is on site. Mr. Kolly stated he thought they could begin their project before the variance process had taken place, but then found out they had to wait. The fill dirt was brought in to bring the slab up higher. Staples stated that currently the drive is lower than the alley. Mr. Kolly stated the drive would be raised up to allow water flow. Staples indicated that it is not allowable to have the water drain into the alley. Kench indicated that DPW had voiced some concerns also regarding drain off. Tolas indicated that this wasn't something the Board had to be concerned with. If in fact they granted the variance, the appellant would still have to build to meet DPW requirements.
Benison asked for clarification on the percentage of the lot size that the project would encompass. Kench stated that according to his calculations it would be approximately 20% as opposed to the 10% that is allowed.
Staples questioned why it would have to be that big. Mr. Kolly reiterated that the idea was to mainly clean up the yard and store all the vehicles inside.
Benison asked for clarification on set-backs. Mr. Kolly indicated that the setbacks were not an issue. Benison asked if he would be installing utilities. Mr. Kolly stated that was not something he was planning on doing at the current time.
The Chairman opened the public hearing.
Denny Martin, 113 N. Harris, addressed the Board. Mr. Martin indicated his only concern was that a stipulation be made that they could not turn part of the garage into an apartment dwelling in the future. Mr. Martin also indicated that the Kolly's have shown an interest in protecting the integrity of the neighborhood and have done a wonderful job with their house.
Staples asked what the plans were for the existing shed. Mr. Kolly indicated it would depend on whether the variance was granted for the new garage.
Roger Gutka, 409 Oak Street, indicated he felt the garage was too close to the alley. Mr. Gutka stated he felt there would be problems with vehicles not being put in the garage and with only 5 feet set-back they would be jutting out into the alley. He was opposed to the project for this reason and also expressed concern with water run off. Mr. Gutka further indicated that DPW could verify the number of calls they already receive due to water in the alley.
Benison questioned whether the garage could be moved to the East. Kolly stated that if they moved it to the East they would have no yard.
There being no one else who wished to address the board, the public hearing was closed.
Kench shared the correspondence the office had received regarding this variance request. There were two telephone inquiries - one in favor, one just asking for specifics. One e-mail correspondence stating opposition was read to the Board. One letter of opposition was read and one piece of correspondence in favor of the project. In addition, comments from DPW were shared with the board.
Board Discussion:
Board discussed the fact that the appellant's lot is small for the zone that it is in, however, the board indicated there were also other lots in that neighborhood facing the same problems. Other discussion included the possibility of the appellant attaching the garage to the home, which would then make it part of the principal structure and not an accessory building. This would virtually eliminate the back yard and could bring up other issues such as such as setback issues, (existing house doesn't meet current setback requirements), egress issues and fire separation issues. The board further discussed on what grounds they would base a variance on. Discussion was that since other lots in that neighborhood are also small, it could not be considered an undue hardship.
Due to there being only four board members present, Tolas gave Mr. Kolly the option of proceeding with the hearing or postponing until a full board would be in attendance. Mr. Kolly chose to proceed with the vote.
M/S Staples/Curtis to grant the variance as requested.
The vote was: Benison - NO; Staples - NO; Curtiss - NO; Tolas - NO.
The motion was denied unanimously.
Case #10-2004 - Philip Seybert - 805 W. Broadway - Request for Interpretation of Section 154.125 (D)(1)Geometrics and possibly a variance depending on the interpretation.
Mr. Seybert stated that during the last ZBA meeting the Board suggested that he move the East drive on Michigan Street 5-8 feet to comply with Ms. Gillis' interpretation of the ordinance. Mr. Seybert stated he had agreed to do that, however in deference to Captain Andy Theisen, Mr. Seybert shared the plans with the Mt. Pleasant Fire Department. Captain Theisen stated his concerns regarding moving the driveway as it would create a problem with the radius for turning with some of the Fire Department equipment. Mr. Seybert stated his appearance before the board was a result of Captain Theisen's concerns.
Mr. Seybert stated he would like to have the Board's interpretation of the language that currently reads: Section 154.125(D)(1) The number of driveway accesses serving the same zoning lot shall not be more than one for the first 100 feet of lot frontage. Mr. Seybert provided the following possible interpretations;
1. You need 100 feet of frontage before you can have the 2nd drive. (No variance needed).
2. The ordinance is silent as to which way you measure from. (No variance needed if measured from the East).
3. Not more than two drives within 100 ft. (Variance needed).
Mr. Seybert also stated that if he is required to move the driveway he may need to re-locate the handicap parking that is currently located right next to the handicap accessible unit, which would be less advantageous to the persons occupying that unit. Mr. Seybert continued saying that there are four magnificent maple trees on Michigan Street that he would like to save if at all possible. Mr. Seybert stated he is a bit confused as he has tried to follow the directive of the Board, and now is meeting with difficulties from other City Departments.
Martineau explained that permission from the ZBA does not mean that the appellant has met all governing party requirements. The ZBA addresses zoning issues, but not DPW and Fire Department issues.
Martineau explained to the Board that they are authorized to interpret the zoning map and text.
Staples asked for clarification from Captain Theisen on the radius problem. Theisen stated that the original plan proposes 900 turns, which he can make with all of the equipment. If the appellant is required to move the 2nd driveway he would not be able to make the radius with the ladder truck. Staples asked why they would need to have a ladder truck for a two-story building. Theisen indicated the Department's goal is to be able to utilize all of their equipment for all the buildings in the City. Furthermore, Theisen indicated that the department does use the ladder truck for two-story buildings.
Tolas opened the Public Hearing.
Kathy Rise, 4505 Winn Road, referred to Section 154.167 (A)The decision of the Board of Appeals shall be final. However, a person having any interest affected by the Zoning Ordinances may appeal to the Circuit Court. Upon appeal, the Circuit Court shall review the record and decision of the Board of Appeals to insure that the decision complies with the constitution and laws of the State; is based upon proper procedure; is supported by competent, material, and substantial evidence on the record; represents the reasonable exercise or discretion granted by law to the Board of Appeals.
Ms. Rise asked that the Board consider very carefully any decision they should make. Ms. Rise quoted from a letter written to Lori Gillis, which was written outlining the decision of the board from Case #5-2004. One of the stipulations the Board requested was the driveway on Michigan Street be moved. Ms. Rise stated that the letter was very clear whether or not the ordinance is clear or not. Ms. Rise questioned how the Board could review a decision they had unanimously approved.
Mr. Tolas stated that Mr. Seybert has not been before the board on a variance request prior to this, and that the last case regarding Rivers Bluff (Case #5-2004) was brought forth by Lori Gillis, and therefore, Mr. Seybert has a right to be heard.
Mr. Martineau stated that Ms. Rise brought up a good point regarding the proper recourse being Circuit Court for Mr. Seybert. Mr. Martineau continued, however, that since Mr. Seybert was never denied a variance, he still retained the right to ask for a variance.
Staples asked whether or not Mr. Seybert still had the option of taking the issue to Circuit Court. Martineau stated he was too late to do that as the action has to be taken within 30 days of the decision.
Ms. Rise argued that the issue had been discussed and debated and the decision of the board was written in very clear language as one of the conditions. She further stated that the whole problem is because the project is too big for the property. Ms. Rise further stated that it was Mr. Seybert's choice to make the building this big and therefore he has created his own problems. Ms. Rise again asked the Board to carefully consider their decision and to not carelessly throw away the law.
Dennis Martin, 113 N. Harris, spoke in opposition to the variance. Mr. Martin stated that at the last meeting he spoke regarding the preservation of the neighborhoods, the needs of the community and building projects that fit the neighborhood. Mr. Martin stated he felt Mr. Seybert was creating his own problems by trying to build something that does not fit the property. Mr. Martin spoke to the deterioration of the riverbanks and the opportunity the City has to prevent further deterioration. Mr. Martin stated he has heard time and again how the project meets the minimum requirements and he does not feel that meeting the minimum requirements is something that the City should be striving for.
Lori Gillis, 902 W. Michigan Street, spoke to the board in opposition of the project. Ms. Gillis stated that she assumed that the boards were here to protect the community and the citizens and she feels that preferential treatment has been shown to the appellant. Ms. Gillis further stated that concessions have been made from day one for this project. Ms. Gillis stated she had submitted four pages with her appeal and put in a lot of time - time away from her family - trying to protect her neighborhood. Out of the four pages, the board outlined four simple conditions for Mr. Seybert's project. Now Mr. Seybert had found that he can't meet the conditions and is back before the board again. Ms. Gillis stated that although Mr. Seybert continues to claim that his project meets zoning requirements, it apparently does not since he is before the board asking for a variance. Ms. Gillis urged the board to deny the request and stated again that the west side needs representation. Ms. Gillis further asked that Mr. Curtiss remove himself from the vote as she felt he could not be unbiased in his vote.
Sally Pomerantz, 1002 W. Broadway, asked to go on record as being totally opposed to the project.
Jane Shippee, 1305 W. Broadway, stated she feels very badly about this project. She does not feel it belongs in the neighborhood and is concerned for the environment.
James Gillis, 902 W. Michigan Street, stated that the neighborhood needs some representation and some help. He further stated that if Mr. Seybert has to ask for a variance, then he needs to shrink the building to fit the property.
There being no one else who wished to speak the public hearing was closed.
Kench shared that he had received one phone call from Lori Gillis (opposed) and one piece of correspondence from Midge McCarthy (in favor).
Board Discussion:
Board discussed a basis for determining which direction to measure from and discussed traffic flow and access issues.
Curtiss stated to Ms.Gillis that how he feels regarding his own property will not affect how he will vote on this issue. Curtiss stated that he too, as a board member, devotes a lot of time to the board and has also missed events and personal time with his family. Tolas also stated that the Board members are not paid and that they rely on legal council for help at times. Tolas further indicated that the Board is independent of the City and they are required to make some hard decisions. Tolas stated that he resents the attitude of some of the community members and the accusations and comments made at the end of the previous meeting.
The Board indicated they would address the interpretation of the ordinance first.
Staples questioned whether Mr. Seybert would be able to acquire more land, which does not appear to be an option. Staples asked if Mr. Seybert could build the units 6 on 6. Mr. Seybert indicated he would need engineers and architects to address that question. Mr. Seybert also indicated he feels the plan does meet the zoning requirements and the only reason he is before the Board was because the Fire Chief expressed concern. Mr. Seybert indicated he too is concerned with safety. Staples asked if a single drive would be sufficient to serve the parking area. Mr. Seybert stated that logistically it would create difficulty for the residents. Mr. Seybert indicated that the development is going to be senior housing and he would like to make it as easy for them to negotiate as possible. Mr. Seybert asked that the Board first interpret the ordinance and depending on how they interpret the ordinance a variance may not be necessary.
Tolas gave Mr. Seybert the option of postponing the hearing until a full board was present. Mr. Seybert stated he wished to reserve his right to postpone until he heard the Board's interpretation of the ordinance.
M/S Benison/Staples to interpret this sentence of the ordinance [154.125(d)(1)] to mean no more than one driveway is allowed within the first 100 feet. Access to be provided from the west along Michigan Street to reaffirm the Board's decision on August 11, 2004.
Vote was as follows:
Tolas - Yes; Curtiss - Yes; Staples - Yes; Benison - Yes.
Motion passed unanimously.
The Board felt that since you could only access the drives from the West that this would be the logical interpretation.
At this time, Mr. Seybert asked to have his case tabled until the next meeting.
III. Old Business
Minutes from the August 11, 2004 meeting were reviewed.
M/S Curtiss/Staples to accept the minutes from the August 11, 2004 meeting as written.
Motion was approved unanimously.
IV. New Business
The Board delayed discussion of the by-laws until the next scheduled meeting.
There being no further business, M/S Curtiss/Staples to adjourn. The meeting was adjourned at 9:05 p.m.