CITY OF CHARLEVOIX
BOARD OF APPEALS
Minutes
February 18, 2004
Coast Guard Training Room
7:00 P.M.
A)
CALL TO ORDER
The meeting was called to order
by Chairman Withrow at 7:00 P.M.
Chairman Withrow welcomed Ms.
Eveleigh as the Board’s new alternate.
B) ROLL CALL
Members Present: Withrow,
Nuttle, Miller, Horton and Eveleigh
Members Excused: Anderson & Cross
Staff Present: Manore
C) DESIGNATION
OF ALTERNATES
Ms. Miller and Ms. Eveleigh
were designated as alternates.
D) APPROVAL OF
MINUTES
The minutes of January 21,
2004 were approved as corrected.
E) APPROVAL OF
AGENDA
The Agenda was approved as
presented. Chairman Withrow stated that
the Board approved a motion at the January 21, 2004 meeting requesting Staff’s
answer to Mr. Engstrom’s question #4.
He indicated that Staff’s input should have been part of this agenda. He
stated that in the future that Staff include all requested information.
F) INQUIRY
INTO POTENTIAL CONFLICTS OF INTEREST
There were no potential
conflicts of interest
G) PUBLIC
HEARINGS
1.
Public Hearing for Case #04-01ZBA - Wine- 306 Nettleton
Staff
pointed out that on February 16, 2004(prior to this meeting), the Applicant
applied for and received an alley vacation to the north and east of his
existing property boundaries. The figures in the staff report reflect both the
original dimensions and the dimensions after this approval.
Mr.
Wine, Applicant presented a photograph of the existing house and the proposed
elevation. He stated that when they
moved in they thought the grassy alley area was part of their property. He
stated that the house is less than four (4’) from the property line. The house is approximately 78 years old.
He
stated the front porch has a very low roof (6’4”) which detracts from the
house. He would like to integrate the
porch with the house. By having the
alley vacated it reduces the size of the variance. Mr. Wine stated he has contacted his neighbors, and they are all
behind them.
Mr.
Nuttle asked the percentage of lot coverage.
Staff stated the lot coverage is .13%.
Mr.
Wine stated they have a large family and they are trying to make the porch more
useful.
Mr.
Horton asked where the Applicant parks his vehicles. Mr. Wine stated that they do not have a garage. Currently, they park at the side of the
house.
Chairman
Withrow pointed out that the key point in this case is that the alley has been
vacated, which adds an additional eight (8) feet to the property. Chairman Withrow pointed out that this lot
is nonconforming in width.
Chairman
Withrow and the Board addressed Staff’s draft if “Situation Findings”. He pointed out that there is only a small
portion of the proposed porch that needs the variance. This area is approximately
3’ x 3’ (as shown in Exhibit A of the Staff Report).
Staff
pointed out that once the alley was vacated, the existing porch met the side
yard setback requirement of fifteen (15) feet.
The
Board reviewed and adopted the following situation findings of facts:
SITUATION FINDINGS OF FACT:
1. The Board finds that this R-1 property is
located at 306 Nettleton Street in the
City of Charlevoix and is owned by Robert & Bonnie Wine.
2. The Board
finds that Section 5.33(1) of the Ordinance states: AThe minimum lot area and width in this zone shall be
twelve thousand (12,000) square feet and one hundred (100)feet
respectively. The building and/or
structures shall not use more than thirty percent (30%) of the usable lot area.@
2. The Board
finds that the parcel currently measures 74.82' x 156.71' x 75.16' x 156.60',
or 11,745.48 sq. ft. and therefore is nonconforming. If the alley is vacated, the parcel will measure 82.82' x 164.71'
x 83.16' x 164.60' or 13,658.51 sf.
This will increase the lot area to a conforming
13,658.51 sf, with a nonconforming width of 82.82'.
3. The Board
finds that the existing and proposed structure meets the 30% usable lot area as
required in Section 5.33(1) of the Ordinance.
4. The Board
finds that Section 5.33(3) of the Ordinance states:
AThere shall be a side yard of not less than
fifteen (15) feet on each side of any dwelling or
accessory building, excepting the street side of any corner lot, which must
abide by the regulations of this Chapter for front yard area.@
5. The Board
finds that the existing porch measures 6.50' x 24.00', with 1' eaves. The proposed deck would measure
approximately ten (10') feet by thirty (30'), with a 1' eave.
6. The Board
finds that Section 5.192 of
the Ordinance states:
AThe front yard depth of all residential structures
shall be the minimum shown in each particular zoned district, provided, that
adjacent lots are developed at a lesser distance from the front line than
buildings hereafter erected may project to the average front line established
by dwellings on the adjacent lots...@
7. The Board
finds that the Aaveraged@ front
yard setback of this parcel is 26.83' The Board finds that extending the
proposed porch by 3.5' to the west will meet this averaged front yard setback
of 26.83'.
8. The Board
finds that the existing house is 3'10" from the north property line.
9. The Board
finds that on February 16, 2004, the City Council considered the Applicant=s request and vacated the alley located on the north
and east sides of this parcel. Eight (8) additional feet were added to the
north and east sides of this parcel.
10. Therefore,
the Board finds that with the vacation the Applicant would be requesting a side
yard setback variance of 3.17'.
Chairman Withrow indicated that Staff has provided the
Board with a number of comments regarding the standards listed in Section
5.256(4).
Mr. Nuttle stated that if the Applicant were to add
3.5’ to the west (street side) side of the porch, he would not need a variance.
Because he wants to extend the porch to the north and south, he would need a
variance to the north. He expressed
concern that technicalities get in the way of common sense in some cases.
Mr. Nuttle pointed out that they cannot make a judgment
based on aesthetics. However, common
sense dictates that this proposal is better than what currently exists.
Chairman Withrow stated he has no problem with the
request, but he does have a problem with what the Board is supposed to
interpret. He stated that it is very
difficult to interpret this request other than with what Staff has provided.
There are options to do different things with this porch that would not require
a variance.
Mr. Wine stated the location of the house puts them in
a bind since the house was built four (4) feet from the property line. The alley vacation gives them more space,
but not enough.
Mr. Nuttle asked how much the existing house occupies
the lot. Staff stated this is a large
lot with a coverage of .13%.
Chairman Withrow pointed out that City Council changed
the standards for granting a variance since they thought the Board was granting
too many variances. He stated the
configuration of the porch could be changed by increasing the area to the west.
Mrs. Wine stated they are also planning on installing
a new door on the front of the house.
Staff stated one alternative would be to wrap the
porch around the south side of the house, which would not require a variance.
Mrs. Wine stated that would be more costly.
Mr. Nuttle stated that since the Applicant is
proposing extending the porch 3.5’ toward the street and there is an “in-fill”
on the side, that the extension to the street should include the in-fill. The
Applicant should be able to fill in this area.
It appears to be a flaw in the Ordinance.
Chairman Withrow stated the Applicant can in-fill on
the existing building. However, the Zoning Ordinance states that you cannot
permit in-filling of new construction. (Sec. 5.221(3)(e)
Mr. Nuttle stated that everyone has a personal desire
to increase the appearance of their property.
Chairman Withrow questioned whether something else could be done to
reconfigure this porch to give the Applicant the space they want without the
need for a variance.
Mr. Nuttle and Chairman Withrow agreed that the porch
could be extended to the west and to the north and south. This would require that a small notch be cut
out of the porch to the north and south.
Mr. Wine pointed out that their porch sets back farther
than the adjacent houses. Chairman Withrow stated the Ordinance allows the
averaging of the adjacent structures to determine the front yard setback.
Mr. Nuttle asked if a trade could be made between the
space that requires the variance with the space where he does not need a
variance. He could also go further to the west by about 1.5’.
Chairman Withrow stated that the only thing that could
apply is the alley vacation. He
reviewed the physical conditions of the property to determine if that is a
basis for granting the variance.
Mr. Nuttle asked if a finding could be made based on
the placement of the house on the lot. Staff stated that was done prior to the
establishment of the existing Ordinance.
Mr. Nuttle stated that is the reason the Applicant is here.
The Board reviewed staff’s draft and made the
following additions, deletions and amendments.
SECTION
5.256(4) FINDINGS OF FACT
The Board reviewed Staff’s recommendations and
determined the following facts.
The following three (3) standards, as found in Section
5.256(4) of the zoning ordinance must be met:
4. Variance General Findings
(a) The Board finds the need for the requested
variance is due to unique circumstances or physical conditions of the property
involved, such as narrowness, shallowness, shape, water or topography and is
not due to the Applicant=s personal or economic situation.
1. The Board finds that this lot is nonconforming in
width, as
stated above in Section 5.33(1) of the ordinance. The lot is 74.82' wide (82.82' after alley vacation). However, such
nonconformance is typical of many of
the properties in this zoning district.
2. The Board finds that the narrowness of the lot
does inhibit the Applicant=s use of their property.
3. The Board finds that the existing porch is
small and not conducive to current living standards.
4. Therefore, the Board finds that standard (a) is
met.
The Board reviewed Staff’s recommendations for Section
5.256(4(b)(3) of the General Finding, as stated below:
It was agreed that item Section 5.256(4)(b)(3) does
not apply in this case and should be removed.
(b) The need for the requested variance is
not the result of action taken
by the property owner or previous property owners that were in violation of zoning regulations
in effect at the time the
action was taken (self-create).
1. No actions
have been taken by the property owner or
previous owner that were in violation of the zoning regulations.
2. Therefore,
the Board finds that standard (b) is met.
Mr. Nuttle addressed Section 5.256(4)(c), questioning
what staff’s recommendations have to do with (c). Staff stated the Board needs to determine if the Applicant needs
“substantial relief”, since the porch can be extended to the west.
Mr. Nuttle asked what difference it will make to
anyone, if the corner to the north is filled in. Chairman Withrow stated the question is what is a reasonably
sized porch. Is this porch, with its
existing width plus the farthest extended distance, a reasonable size.
Mr.
Nuttle asked about the square footage of the house and porch. Mr. Wine stated
the existing house is 2,100 sq.ft. and that the existing porch contains
approximately 150-160 sq.ft. of area.
The request would increase the size of the porch to 300 sq.ft. Mr. Wine stated the house was probably built
in the early 1900’s and that the porch was added on. (Note: the footprint of
the existing house and porch is 1,562.28 sf.)
Mr. Nuttle asked if it was normal to have this size of
porch on the front of a house. Mr. Wine
pointed out that there are numerous houses in the area with this size
porch. Mr. Nuttle asked if preservation
of the character of the property is important in our decision. He stated there
is a reasonableness based on the architecture of the house when it was built.
The proportion of the porch to the total square footage of the house represents
a reasonable bench mark.
Mr. Horton stated that, for safety reasons, it would
be better to be able to see around the side of the house.
Mr. Nuttle stated the Applicant is trying to create a
real porch and not something that is jerry mandered to fit the ordinance. It makes no sense to require the Applicant
to put a notch in the north corner of the porch.
Chairman Withrow stated this is a very reasonable
request, but it does not meet the standards.
The Board reviewed the photograph of the house. Mr. Wine stated that the roof is rotting
away. Ms. Miller suggested changing the
style of the posts . It was suggested
that the steps could be moved to the north side of the porch. A two (2) foot overhang is allowed. Mrs. Wine stated there is nothing on that
side of the house. Mr. Wine asked if it is a hardship that the
house was built only four (4) feet from the north property line.
Mr. Nuttle stated that by vacating the alley, the
Applicant made an attempt to balance the house with the lot and meet the
requirements of the Ordinance. Staff
pointed out that when the alley was vacated it brought the existing encroaching
porch into compliance with all the setback requirements of the Ordinance.
Mr. Nuttle stated that anyone’s request for a variance
would be based on their “personal desire”.
Staff stated there are situations where an Applicant may have no
alternative but to seek a variance due to the size, shape, etc. of their lot.
Staff read Section 5.221(3) which explains the
requirements of an in-fill.
Mr. Nuttle asked if there is any evidence of old
construction. Chairman Withrow stated
this lot is nonconforming in width only.
Mr. Nuttle suggested that there is a hardship since
the lot is nonconforming in width.
Chairman Withrow noted that the phrase found in 4(a) “not
due to the Applicant=s personal or economic situation” is impossible to meet
since everyone’s request is based on their personal or economic desires. He stated that the question is whether the
porch needs to be bigger.
(c) The
requested variance is the minimum variance necessary to grant substantial
relief to the Applicant while at the same time minimize any adverse impacts to
other property owners in the general neighborhood or zoning district.
1. The Board finds that no correspondence
has been received regarding
this request.
2. The Board finds that the proposed
variance results in
an approximate nine (9) square foot area which aligns
with the existing building line of the house
and does not create a
significant nonconforming
condition.
3. The Board finds that the proposed porch
creates a minimal variance condition. However, the aesthetics and configuration of the new
porch, with the existing
house, seems to be the most aesthetically appropriate solution.
4. The Board finds that this is the minimum
variance that will grant
substantial relief and does not
create an adverse impact to the general neighborhood or zoning district.
5.
Therefore, the Board finds that standard (c) is met.
SECTION
5.256(5)(A) FINDINGS OF FACT (Staff
Draft)
Mr. Nuttle pointed out that it would be unnecessarily
burdensome to require the Applicant to adjust their plan for a nine (9) square
foot variance.
Chairman Withrow expressed concern regarding this
request since the porch could be reconfigured in many different ways, without
the need for a variance. There are many different alternatives
available. However,
no alternatives have been presented to the Board. Staff pointed out that alternatives were discussed with the
Applicant prior to this meeting.
(5) Special Findings
(a) Dimensional
Variances. To obtain a variance from
the
dimensional requirements of this Ordinance (area
setback, frontage, height, bulk,
density or other dimensional requirements),
the Applicant must establish that strict
compliance with regulations governing area, setback, frontage, height,
bulk, density or other dimensional
requirements will unreasonably prevent the property owner from using the property for a permitted
purpose, or will render conformity with those regulations unnecessarily
burdensome.
1. The Board finds that there is an existing
porch measuring 22' x 6.5', with
a one (1') foot eave.
2. The Board finds that the Applicant and their
Predecessors
have successfully occupied this house
for over
eighty (80) years (with the existing porch).
3. The
Board finds that strict compliance with the regulations governing setbacks would be
unnecessarily burdensome
since the request is for only nine (9) square feet.
4. Therefore, the Board finds that finding (a) is not been met.
The Board requested that Staff include examples of
alternatives with all future requests.
The Board re-reviewed the standards. Chairman Withrow was the only descenting
vote on Section 5.256(4)(a). The Board agreed that the standards have been met
for Sections 5.256(b) &(c) and Section 5.256(5)(a).
Motion by
Miller Supported by
Horton
To grant
Case #04- 01ZBA a side yard setback variance of 3.18’, resulting in
approximately nine (9) square feet of porch,
to allow the Applicant to increase the size of the existing porch. This variance is granted on the basis.
Ayes:
Nuttle, Horton, Eveleigh and Miller
Nays: Withrow
Motion
Carried
H) OLD BUSINESS
1. Decision & Order for the ZBA interpretation of Aprofessional office@
Chairman Withrow stated the words “Webster’s New
Collegiate” dictionary need to be added.
The Decision & Order
was approved as corrected, by voice vote.
I) OTHER COMMUNICATIONS
Chairman Withrow accepted A.J. Witthoeft’s letter of
resignation with regret.
J) NEW BUSINESS
1. By-Law Amendments
Staff reviewed the amended By-Laws with the Board.
Motion by
Nuttle Supported
by Withrow
The Board approved
the amended By-Laws as presented by voice vote.
Chairman Withrow expressed
disappointment that Staff did not respond to question #4 of Mr. Engstrom’s
letter, especially since the Board approved a motion to that end.
Chairman Withrow stated
that Section 5.256(4)(a) of the standards set a condition that is almost
impossible for a variance to be approved. This standard states in part: “ . .
. and is not due to the Applicant=s
personal or economic situation.” He stated
it would be hard to conclude that any variance request would not apply to a
personal or economic situation. This phrase is wrong and should be looked at.
The Board agreed.
Motion by
Withrow Supported by
Nuttle
That the
words “and is not due to the Applicant’s personal or economic situation”, in
Section 5.256(4)(a) be revised. This is
based on the Board’s determination that all variance requests are based on
personal or economic situations.
The motion
was carried by unanimous voice vote.
Motion by
Withrow Supported by
Nuttle
The Board
also requested that language be added to the standards for minimal variances,
that would clearly not impact the intent of the Ordinance.
The motion
was carried by unanimous voice vote.
Chairman Withrow stated
there are three items that the Board would like Staff to address at the next
meeting:
1.
Question #4 from Mr. Engstrom’s letter
2.
Section 5.256(4)(a) – revisions to existing language
3.
Language added for the granting of minimal variances.
K) PUBLIC INPUT, NOT RELATED TO OTHER AGENDA
ITEMS
None
L) ADJOURNMENT
The meeting was adjourned at 8:45 P.M.