CITY OF CHARLEVOIX

BOARD OF APPEALS

Minutes


January 17, 2001
City Hall - 1st Floor

7:00 P.M.


A) CALL TO ORDER

The meeting was called to order by Chairman Withrow at 7:00 P.M.

B) ROLL CALL

Members Present: Chairman Withrow, Ostling, Cross, Anderson & Hodgson

Excused: Nuttle

Staff Present: Gerry Harsch & Dianne Manore

C). DESIGNATION OF ALTERNATES

Mr. Ostling was designated as alternate

D). APPROVAL OF MINUTES

The minutes of December 20, 2000 were approved as corrected.

E) APPROVAL OF AGENDA

The Agenda was approved as presented

F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST

None

G) PUBLIC HEARINGS

ITEM 1 - Case #01-01ZBA - Bomier - 204 Prospect - Variance

Chairman Withrow introduced the case. Mr. Bomier, Applicant stated that his house was built prior to the enactment of the present ordinance and does not comply with the front and side setbacks. He pointed out that he would like to add an addition in line with the existing house. One of the proposed additions would extend 3.67' into the side (north) yard setback.

Chairman Withrow pointed out that staff has provided the Board with three examples of similar variances granted in the R-1 district. This is a large lot and the structures are well within the required lot coverages. The proposed addition is consistent with the existing side yard setbacks.

The Board reviewed the findings and special findings. There was no public comment or correspondence related to this case.

The Board reviewed the five conditions that should exist before any variance is granted.

1. Not be contrary to the public interest or the general intent and purpose of this Chapter

No correspondence was received regarding this case.

2. Not permit the establishment of a use within a given district which is prohibited therein

The use is one which is allowed in the R-1 District.

3. Not be a variance so commonly recurring as to make reasonably practical the formulation of a general regulation by the City Council.

4. Not cause substantial adverse effect to properties in the immediate vicinity or in the zoning district where the variance is located

5. Relate only to the property that is described in the application for the variance

Chairman Withrow pointed out that Staff has included three similar variances that have been granted in the same district on conforming lots. The Board determined that Special Finding #3 would apply.

Motion by Hodgson Supported by: Anderson

to grant a side yard (north) variance to Section 5.33(3) of 3.67' for Case #01-01ZBA, to allow the applicant to build an addition to the existing structure. This variance was granted on the fact that all five findings of fact have been met, that such variation is necessary for the preservation of a substantial property right possessed by other properties within the same zoning district and similar variances have been granted in the R-1 district.


Ayes: Hodgson, Anderson, Withrow, Cross & Ostling

Nays: None

Motion: CARRIED

 

Item #2 Case #01-02ZBA -Aerne - 225 Park Avenue - Variance

Chairman Withrow called the case. Staff indicated that one letter of objection was received.

Mr. William Finnicum, Architect for Applicant presented additional drawings of the project. He indicated that Mr. Aerne would like to add a great room to the west side of his house. He reviewed the location of the existing house, the setback lines and steep topography.

He stated that all five (5) findings of fact have been met. Mr. Withrow asked what the hatched areas indicated on these plans. Mr. Finnicum stated that is a one story addition off the first floor (main floor), which will be supported by posts.

Mr. Finnicum stated this proposal is consistent with the general intent of the chapter and not contrary to the public interest. This is a single family use within a single family zoning district. This request is unique to this site due the steep slope. The proposed change would have a minor impact on the surrounding property.

This proposal is unique to this site. There are practical hardship unique to this site.

At one point the ordinance says we can build at the 25' setback line, the other point says we must build behind the 70' building line. The 70' building line would only be 6' 4" west of the existing house. This line would be 36' 8" inside the allowable setback line. The 70' rule prevents the Applicant from using a large amount of his building area. This represents a 28% loss of use of the overall site. It is a 51% loss of use of the allowable building area, which is taking away Mr. Aerne's right to use his property to the fullest.

If the proposed addition were rotated 15 degrees to the north with a parallel line from the addition, the line would meet the 70'. In addition, the northern corner of the building would drop down the hillside by about eight (8') feet, which would be very difficult to do from a construction aspect. This fact, and relocating the driveway would create a practical hardship and deny Mr. Aerne the substantial use of his property. For these reasons, we request that this variance be granted.

Mr. Anderson pointed out that the location of the 70' line is different from the same line shown on the Architect's drawing. Mr. Harsch referred the Board to Section 5.8(e) of the ordinance which states: "The distance between the front and rear lines measured in the mean direction of the side lot line." Staff interprets this to mean that you measure to the mid-point between the front and rear property line (depth measurement). The width was then measured perpendicular to the depth.

Mr. Ostling stated there are a number of different ways to establish setback lines. He stated that this Board does not have to interpret this. This ordinance was written to apply to existing lots and new lots to be subdivided. It is either a desirable standard or a minimum for new lots. The only obligation applied to existing lots which is done by the Zoning Board of Appeals. The ordinance was adopted for new subdivisions with 70' width at a given distance from the lot line. If there is an existing subdivision, the Board must determine if there is any harm done to the public or an individual. There is no answer, it can be argued both ways. The permit was granted with some understanding of the spirit of the ordinance. Mr. Ostling stated there is nothing wrong with considering the spirit of the ordinance. This is necessary with a City as old as Charlevoix.

Mr. Bryan Graham, City Attorney, asked the relevance of the actual width and depth of this lot. The issue is the requirement that there be a minimum of 70' at the building line. The ordinance gives a specific formula on how to measure the width and depth of the lot. He questioned the relevance.

Mr. Graham cited Section 5.8(d) as the point of measurement. It only gives you a point of measurement, it does not give you a definition on how to measure the angle of that line.

Chairman Withrow asked if the description of the front building line only deals with new construction and new properties. Is there an application to an existing structure versus a new vacant lot.

Mr. Ostling stated you cannot control new subdivisions with an ordinance that also controls old subdivisions. The ordinance has to say whether it addresses new or old lots and construction. The Board is here to see who will be damaged by this proposal.

Mr. Harsch explained how and why Staff drew a perpendicular line to the mean line. Mr. Finnicum pointed out that it has nothing to do with where the building is. Chairman Withrow agreed.

Mr. Finnicum stated that if this were a vacant lot, a house would never exist due to the interpretation of the 70' at the building line. Mr. Harsch stated that to find the lot width under this ordinance, the line would be struck to create the depth. At the mid-point you would measure the shortest distance between the side lines. You would not take a measurement from the setback line.

Chairman Withrow advised that the only thing under discussion tonight is 70' at the building line. This is what Staff has provided us, which is correct. There are three findings available to use. Is it an acceptable variance, is it unacceptable or is a variance necessary.

Mr. Graham pointed out that at the past meeting the Board ruled that this is a conforming lot and that the proposed building was not at the 70' building mark. If that issue needs to be revisited, this will have to be noticed for a re-hearing on that issue. The decision was made that any building on a lot has to be 70' wide at that location. The Applicant is proposing an addition to this building, that is in a portion of the lot that is narrower than 70'. The question before this Board is whether a variance should be granted to allow construction of this addition in an area less than 70'.

The Board discussed rotating the garage. Mr. Finnicum stated it would not help. Chairman Withrow explained that the front of the building is called the "building line" and the farthest point forward towards the street, on the front yard setback has to be the point were the width is 70'. Mr. Finnicum asked if the building line is independent of where the building is located. Chairman Withrow stated you cannot be in front of the 70' line without a variance.

Mr. Graham asked if the garage could be relocated to the north. Mr. Finnicum pointed out that there is a large drop off to the north of the property.

Mr. Scott Beatty, for Mr. Creswell, stated that after speaking to the City Attorney, this is a continuation of the previous hearing. He requested that the Board consider the past letters received regarding this matter. The Applicant is not being denied a substantial use of his property. He already has substantial use of his property through the existing structure. Mr. Beatty agreed with the comments made by Mr. Ostling. In terms of a compromise, he suggested denying the great room and approving the garage. The application calls this a one story addition. He asked that this variance request be denied. The existing living space has served the Applicant for 60 years.

Mr. Beatty cited the general intent and purpose of the ordinance:

He stated that the great room does not serve any of these public purposes and should be denied.

Chairman Withrow asked who Mr. Beatty considered the "public". Mr. Beatty suggested it is the public in general. There should not be an encroachment beyond the appropriate building line of the ordinance.

Chairman Withrow asked Mr. Beatty to identify the areas that impact the intent and purpose of the ordinance. Mr. Beatty stated the ordinance sets certain parameters and it would be over crowding to go beyond those. The intent of the ordinance is not tp allow this over crowding. However, the Board is here to determine if the unusual circumstances of this case warrant the Applicant to violate the law and encroaching. If a garage is a requirement in northern Michigan, as argued by Staff. Mr. Beatty stated that there have been no facts to indicate that the proposed great room is a requirement and without them, he would be denied use of his land.

Something is needed to balance the encroachment. There is no justification for the great room. Let him put some stilts down. That is within the building area.

He can add space with the same view toward the lake. He can do this without stopping his (Mr. Beatty) view from the stop sign and Mr. Creswell's view across the street.

Chairman Withrow asked if the view is the only issue, and that there will be no adverse effect. The only reason the Applicant is here is because he realizes he needs a variance. Chairman Withrow stated the Board needs to determine if this variance would hurt someone else and is there reasonable justification to grant this variance.

Mr. Beatty stated the issue is not only restricted to the view. He stated that he has a personal issue. Bigger and bigger houses are being built on smaller lots. This would effect the character of the neighborhood and cut down light and air. One of the purposes of the ordinance is to prevent over crowding of the land. He suggested that if the Applicant wants living space, let him add down the hill without violating any City statutes. The garage and great room are two different things and need two different decisions. He pointed out that there are letters of opposition and the issue of how this will effect Mr. Creswell. As proposed, this project is contrary to the public interest and will cause substantial adverse effect on neighboring properties.

The Board discussed the 70' building line regulation. Mr. Harsch stated this regulation applies equally throughout the R-2 zoning district. It was designed to establish a lot size and not to protect any type of view. Typically, this language is included in ordinances to deal with cul-de-sacs and curvilineal streets. Where the building sits there must be adequate room across the front of the lot.

Mrs. Cross stated the Planning Commission included this language in the ordinance to allow for more room and green space.

Mr. Harsch pointed out that there are hundreds of points where the public can view the lighthouse and the intersection of the lake and river. There has been no evidence or expert testimony given that would clearly demonstrate an impact on the view. The ordinance says nothing about view. He pointed out that if the northern property line had been established in a straight line, there would be no reason for the Applicant to be here. Chairman Withrow pointed out that adding four (4) feet to the north would not resolve the impact questions. Mr. Harsch stated there is one of our largest parks immediately adjacent to this site. He also pointed out that the Applicant is well under the required 30% lot coverage.

Mr. Graham stated the Board needs to focus on what the intent is regarding the 70' building line. Is the intent to protect views, light and air or is it to make sure that a lot is wide enough to build on.

Once the Board determines the intent, then a decision can be made as to whether a potential encroachment into that area would or would not be contrary to that purpose.

The Board discussed the location of the house on Grant Street. The Board asked for the photographs presented at the December appeal. The Board reviewed the photographs. Mr. Harsch presented the aerial photographs of the site. The house on Grant is about ten (10) feet back from the right-of-way. The house at the fish hatchery is behind that location. They are considerably closer to Grant Street than what is being proposed.

Mrs. Cross stated that his proposal would create undue lot congestion. Mr. Graham suggested that the Board could vote on each finding of fact.

Chairman Withrow asked for a vote to determine if the Board felt they could come up with language to support the first special finding.

Ayes: Hodgson, Anderson, Withrow,and Ostling

Nays: Cross

The Board addressed the five findings of fact.

1. Not be contrary to the public interest or the general intent and purpose of this Chapter

2. Not permit the establishment of a use within a given district which is prohibited therein

3. Not be a variance so commonly recurring as to make reasonably practical the formulation of a general regulation by the City Council.

The Board discussed the term `substantial adverse effect'. As requested by Mr. Anderson, Staff informed the Board that 49 notices were mailed and three letters of opposition were received.

Mr. Graham cautioned that `substantial' should not be based on mathematics. Mr. Anderson stated that, in this case, three responses were not overwhelming. Mr. Graham stated the Board should review the points that were made in the letters received. Mr. Graham advised that finding #1 addresses the public as a whole and that finding #4 addresses properties in the immediate vicinity.

Chairman Withrow read the following from Mr. Klein, dated January 15, 2001. "...Part of the beauty and value of my home is the vista of Lake Michigan". Is monetary value a substantial adverse effect. Mr. Graham stated the Board now needs to determine what facts this resident used to support this statement. The decision must be based on evidence presented on the record and if there is evidentiary value. Just because a statement is made, does not necessarily mean it has evidentiary weight.

The Board discussed substantial adverse effect. Mr. Harsch asked the Board to determine who is going to provide expert testimony, for the record, that property values will be reduced. He pointed out that no evidence has been introduced that demonstrates that there will be an adverse effect on the adjacent properties. The letter submitted is only an opinion. No appraisal study or comparables were presented for the record.

Mr. Beatty stated that while there may be a difference in weight, a lay witness can testify as to property value in this state.

Mr. Anderson pointed out that in the letter (Klein-1/15/01), Mr. Klein has not seen the proposed plans. Mr. Ostling stated that by the summer that the value of that house will be reduced.

Mrs. Cross stated this proposal will effect the adjacent property, but she questions the extent of that effect. Chairman Withrow stated that no evidence was presented to demonstrate the extent of any adverse effect, the Board cannot determine if the effect would be substantial. Mr. Graham pointed out that the evidence presented does not quantify that effect.

Chairman Withrow stated the adjacent property owners can still see the lake and that the findings were not substantial. This effect has not been quantified. Chairman Withrow polled the members of the Board as to whether this proposal would have a substantial adverse effect on the properties in the immediate vicinity.

Mr. Hodgson stated it would have a substantial adverse effect.

Mr. Anderson stated it would not have a substantial impact.

Chairman Withrow stated it will have an impact, but facts have not be presented that would allow him to quantify that impact.

Mrs. Cross stated it would have a substantial adverse effect.

Mr. Ostling stated it would not have a substantial adverse impact.

4. Not cause substantial adverse effect to properties in the immediate vicinity or in the zoning district where the variance is located

5. Relate only to the property that is described in the application for the variance

Chairman Withrow stated that Staff has withdrawn the staff notes outlined in item three (3) of the special findings. Mr. Harsch pointed out that the Board may find in favor of item 3 for other reasons.

SPECIAL FINDINGS

1. That there are practical difficulties* or unnecessary hardships** resulting from the physical characteristics of the property in question which make it unfeasible to carry out the strict letter of this Chapter. Increased financial return to the applicant shall not be considered just cause for a variance based upon hardship.

2. That there are exceptional or extraordinary circumstances or conditions which apply to the property in question that do not apply to other properties in the vicinity within the same zoning district and which have not resulted from any act of the applicant subsequent to the adoption of this Chapter.

3. That such variation is necessary for the preservation of a substantial property right possessed by other properties within the same zoning district.

Chairman Withrow pointed out that Special Finding #1 and #2 seem to apply. Mrs. Cross asked if restrictions could be made to this request. The Chairman pointed out that the only variance asked for is for the 70' building line. Chairman Withrow stated that since it appeared that the height was a problem in dealing the findings of fact, then a restriction may be able to be placed on the variance. The questions before the Board are view and impact to the value of adjacent properties.

Mr. Graham stated the ordinance already sets a height limitation. If the proposal does not violate that height proposal, the Board cannot impose any height conditions. Mr. Graham stated that to grant a variance, the Board must find that the standards have been met.

Motion by: Anderson Supported by: Ostling to grant Case #01-02ZBA a 4.51' variance in width at the 70' building line requirement as stated in Section 5.43(1) of the zoning ordinance. This variance is granted on the basis that there are practical difficulties or unnecessary hardships resulting from the physical characteristics of the property in question which make it unfeasible to carry out the strict letter of this Chapter. In addition, there are exceptional or extraordinary circumstances or conditions which apply to the property in question that do not apply to other properties in the vicinity within the same zoning district and which have not resulted from any act of the applicant subsequent to the adoption of this Chapter.

Ayes: Anderson, Withrow and Ostling

Nayes: Hodgson and Cross

Motion CARRIED

H) OLD BUSINESS

None

I) OTHER COMMUNICATIONS

None

J) NEW BUSINESS

1. Election of Officers for 2001

K). PUBLIC INPUT, NOT RELATED TO OTHER AGENDA ITEMS

None

L). ADJOURNMENT

The meeting ended at: 9:20 p.m.