Untitled Document

CITY OF CHARLEVOIX

BOARD OF APPEALS

Minutes

February 21, 2001
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, Cross, Hodgson and Nuttle Excused: Anderson & Ostling
Staff Present: Gerry Harsch & Dianne Manore

C). DESIGNATION OF ALTERNATES
Mr. Nuttle was designated as alternate

D). APPROVAL OF MINUTES
The minutes of January 17, 2001 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 #01-05ZBA-Elzinga

Ms. Beth Ranger, Ranger Engineering was representing the Applicant.

Staff explained that the Applicant is planning to become a year round resident. For this reason, an addition and rear deck are proposed to allow for more living space. This is a nonconforming lot containing only 7,531.36 sq.ft.

Mr. Nuttle asked what the distance was from Lot #4 to the Elzinga addition. Mr. Withrow estimated that there is approximately 12' between the adjacent structure and the property line. It was pointed out that the proposed structure is in line with the existing house and that it will be in keeping with the existing elevations.

Ms. Ranger pointed out that this proposal would account for 19% coverage in the rear yard and would meet the required 30% total lot coverage.

Chairman Withrow indicated that there was one supporting letter received from Mr. Paul Hoeldeck.

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

"This Chapter is adopted pursuant to the authority conferred by Public Act 285, P.A. 1931, as amended of the State of Michigan, for the purpose of promoting and protecting the public health, safety, peace, comfort, convenience and general welfare of the inhabitants of the City of Charlevoix by protecting and conserving the character and social and economic stability of the residential, commercial, industrial and other use areas, by securing the most appropriate use of land; preventing overcrowding of the land and undue congestion of population; providing adequate light, air and reasonable access; and facilitating adequate and economical provision of transportation, water, sewers, schools, recreation and other public requirements."

The proposed addition and deck is an appropriate use of the land and is in line with the existing structure.

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-2 District. 3. Not be a variance so commonly recurring as to make reasonably practical the formulation of a general regulation by the City Council.

The frequency of such requests having similar circumstances is minimal.

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

No evidence was presented nor testimony given upon which it could be concluded that a substantial adverse effect to other properties would result.

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

This request relates only to the property described in the application.

Chairman Withrow pointed out that Staff has included a list of similar variances that have been granted in the same district. The Board determined that Special Finding #3 would apply. Motion by Hodgson Supported by: Nuttle to grant a side yard (south) variance to Section 5.43(3) of four (4') feet for Case #01-05ZBA, to allow the applicant to build an addition and deck to the existing structure. This variance was granted due to the fact that all five findings of fact have been met and 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-2 district. Ayes: Hodgson, Withrow, Cross & Nuttle Nays: None Motion: CARRIED Item #2 Case #01-08ZBA - DEQ - 701 & 703 Bridge Street Chairman Withrow called the case. Mr. Mawby and Ms. Elaine Pelc (DEQ) were present to answer the Board's questions. Mr. Mawby stated their firm has been retained to design a remediation system for the dry cleaning operations where there is historic contamination. The variance pertains to the placement of the remediation building. This is a 10' x 12' temporary timber frame structure to house the equipment. Historically, there have been releases to the rear of the dry cleaners building which has resulted in impacts to the soil and ground water. Mr. Nuttle asked if there is a holding tank inside of the building. Mr. Mawby stated the treatment building would hold two blowers, a compressor and a vacuum blower to extract the soil vapor. Mr. Mawby estimated the time for this remediation would be 12-18 months. This is a standard practice. Mr. Withrow pointed out that the staff report includes copies of the well location and the hook-ups. Staff has also included copies of the similar remediation structure located on W. Lincoln. Mr. Nuttle asked if the neighbors have any problems with this request. Mr. Mawby stated they do not. Mr. Nuttle asked if there is any hazard involved once the contamination is removed. Mr. Mawby stated that they capture the contamination in two phased carbon vapor. It is designed for minimal hazard. Mr. Nuttle expressed concern for the residents of the adjacent apartments. Chairman Withrow asked if Staff has documentation from the two landowners to allow the installation of this structure. Ms. Pelc, DEQ, stated they do not have any written documentation. However, DEQ has met with the property owners and obtained verbal agreement with both parties. The signed lease agreements will be drawn up just prior to construction. Ms. Pelc stated the lease agreement will be for 10-12 months. If additional time is needed, it will be re-negotiated. Ms. Pelc explained that there are sample ports inside of the building that will be analyzed to determine how much of the chemical is still coming into the soil. After a period of time, if the chemical is not detected, then soil samples will be taken to confirm that it is out of the soil. We already have monitoring wells in the ground water at this site. They will be monitored quarterly. In 1998, a pilot test was done at this site with a portable generator. At that time different air pressures were applied to the ground water with different vacuums to the soils. With this information, the engineers were able to project that the process would take 10-12 months. The conditions at this site are ideal since it is mostly sand and very agreeable to the process. Chairman Withrow asked the type of contaminants. Ms. Pelc stated they are trying to remove PCE which is a common soluble dry cleaning solvent. Mr. Mowby stated the bubbling of the air injected into the water strips the contaminants out of the ground water and into the unsaturated zone. Then they are collected by a vacuum system that goes up to the treatment building, through the carbon and then extracted from the air stream prior to discharge. This discharge is then monitored. The building is designed with double dry wall and special venting. Ms. Pelc stated DEQ has not met with the residents. She pointed out that the W. Lincoln site is larger with a larger blower. Due to the resident's concerns, we put the system on a seven day timer from 8 a.m. to 4 p.m. She stated that noise will not be an issue at this site due to the design of this building. If there is a problem with one resident, we can put this system on a timer. Chairman Withrow asked if the DEQ met the conditions of the variance granted for the W. Lincoln site. Ms. Pelc stated they met these requirements for the 65 DB levels. Ms. Pelc stated they would be agreeable to the 65 DB restrictions at the site. The Board discussed the time limits for this process. Mr. Mowby suggested 24 months would be sufficient time. Mr. Nuttle suggested a motion to include 24 months. Chairman Withrow requested a copy of the lease agreement between the parties involved. The Board would be granting an illegal variance without this agreement. Mr. Nuttle questioned whether the Board would need a copy of the lease agreement. Staff pointed out that the adjacent properties are all zoned C-1. 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

The Board determined that remediation of this site would be in the best interest of the public.

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

This is a temporary structure in this district which is zoned C-1, Commercial

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

Historically, there has been only one other similar request granted in an R-2 zoning district.

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

Based on the presentation and conditions proposed by the Zoning Board, this variance will not cause a substantial adverse effect.

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

This request relates only to the two properties described in the application.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.

The Board determined that the existing pollution and removal of that pollution constitutes an exceptional or extraordinary circumstance

3. That such variation is necessary for the preservation of a substantial property right possessed by other properties within the same zoning district. Motion by: Nuttle Supported by: Withrow to grant Case #01-08ZBA the following variances: 701 Bridge: 5.176(3) - 10' side yard setback 5.176(4) - 2' rear yard setback 703 Bridge 5.176(3) - 10'Side yard setback These variances are granted with the following provisions: 1. That the temporary structure be removed within twenty-four (24) months of installation. 2. That a signed lease agreement between the parties be submitted to the City. 3. That the standard OSHA specifications for an office of 65 DB, for the allowable noise level be used at this site. The measuring point for these readings shall be ten (10') feet from the building. Ayes: Nuttle, Withrow, Cross & Hodgson Nayes: None Motion CARRIED Item 3 - Case #01-09ZBA - Peterson - 208 W. Lincoln Upright-Variance Chairman Withrow introduced Case 01-09ZBA. Mr. Peterson, the Applicant was present to answer questions. He stated that one of the neighbors suggested putting the garage behind the house. However, that would remove a large portion of our back yard. Staff stated that two letters have been received from neighbors. Mrs. Cross asked the distance between the houses. Staff indicated that there is 9.08' between the Applicants house and the adjacent house to the west. The proposed decking is to be "at grade". Mr. Nuttle asked if the Applicant has talked to the owner to the west. Mr. Peterson stated he spoke to Terry Left (owner) and that he did not have an objection. Currently the house is a rental. Mrs. Cross pointed out that owners may change, but variances go with the property. Mrs. Cross stated that the garage should be placed in the rear of the property. Chairman Withrow introduced the two letters of correspondence into the record. Mr. Peterson stated they both live across the street. The Board discussed their site visits and the fact that this garage would be very close to the property line. Mr. Peterson suggested that they may sell their house. They would like to stay in town, but putting the garage in the rear would take up a lot of the rear yard. Mr. Harsch pointed out that there would be no way to construct or maintain this garage without going on the neighbors property. Chairman Withrow asked if there are any extraordinary reasons for granting this variance. Mr. Peterson stated there are a number of mature trees and utilities running along the east side of the house. Mr. Nuttle asked if the garage was removed would the addition meet the requirements of the ordinance. Staff indicated that it would. The Board discussed the list of variances that have been granted in the past in the R-2 district. Chairman Withrow stated the Board needs to look at the lot to see if there is another location where the garage can be built. Chairman Withrow pointed out that the Board usually does not see cases where there are alternatives. Staff indicated that they worked extensively with the Applicant in an attempt to come up with alternatives that would lessen or eliminate the variances. Mr. Nuttle stated that, in this case. The garage is too close to the lot line since there are other locations where the garage could be located. Mr. Peterson stated that if the garage was put in the rear, the back yard would be chopped up too much. If it was put behind the den, he may not be able to make the turn into the garage. Mrs. Cross pointed out that there is 35' in the rear where the garage could be located. Chairman Withrow stated the den and garage could be rearranged to fit on this lot. Mr. Nuttle asked if the buildings could be relocated on the property without a variance. Staff stated that if the proposed structures were relocated a minimal variance may be needed. However, a detached garage could be placed in the southwest corner of the lot without a variance. The den could then be two stories to accommodate the second story bedroom. Chairman Withrow stated that after reviewing the five findings, the Board cannot find a compelling reason to grant this variance. Motion by Cross Supported by Hodgson to deny the variance for Case #01-09ZBA on the basis that the garage would be too close to the property line, there are other alternative locations for the garage. Ayes: Withrow, Cross, Hodgson and Nuttle Nays: None Motion Carried H) OLD BUSINESS The following Decisions & Orders were approved as amended and corrected by voice votes. Mr. Nuttle abstained from voting on Case #00-38ZBA since he was not present at the meeting of 12/20/01. 1. D & O for Case #00-31ZBA - Charlevoix County 2. D & O for Case #00-32ZBA - Blissett 3. D & O for Case #00-34ZBA - Gudritz denial 4. D & O for Case #00-35ZBA - Oleson's 5. D & O for Case #00-38ZBA - Cresswell Appeal 6. D & O for Case #01-02ZBA - Aerne Variance Mr. Scott Beatty, Counsel for Mr. Cresswell questioned the following statement in the Decision & Order for Case #00-38ZBA:

Item 4 Section 5.221(2)

Section 5.221(2) reads as follows:

(2)An existing nonconforming structure may be altered or remodeled within the interior dimensions of the building, provided no exterior structural alterations are made except those that may be required by the Building Inspector.

This section addresses "existing nonconforming structures". The existing structure is nonconforming with regard to its height and its setback from the east property line. The section prohibits exterior structural alterations to that "existing structure". Allowing conforming extensions to existing nonconforming situations under the Zoning Ordinance is a longstanding administrative practice.

He stated that the last sentence is the correct statement of how the Board approached this issue. The second to the last statement, as being this Board's decision that this statutory decision as in this project was never considered. The Board did not interpret the Ordinance but relied on longstanding administrative practices. He suggested that the sentence : "The section prohibits exterior structural alterations to the "existing structure" is incorrect since it may raise the inference that the Board considered, deliberated and interpreted that section of the Ordinance. Mr. Beatty stated that the finding of the Board was that it was a longstanding practice and not an interpretation of the Ordinance. Chairman Withrow stated it was his understanding that the Board previously approved conforming extensions on nonconforming structure. The Board has not had a problem with that. Mr. Nuttle left the meeting. Mr. Beatty suggested that there was no interpretation or vote on this matter. Chairman Withrow stated the Board had discussion on this matter and Staff provided their opinion of what it was, as well as evidence of what variances have been given in the past. This adequately represents the fact that the Board heard information and accepted it. Chairman Withrow stated he has no problem with this sentence. Mr. Beatty suggested that this Board has never looked at an independent determination of the reading of that statute and voted on it. The Board relied on the fact that Staff stated this has been a longstanding practice. Mr. Hodgson pointed out that the Board received a letter from the City Attorney that was consistent with the last sentence in the above paragraph and not with the second to the last sentence. The Board discussed the sentence and recommended deleting the following sentence from the D & O : "The section prohibits exterior structural alterations to the "existing structure". The following D & O for Case #00-38ZBA was approved as amended. Mr. Beatty, questioned the following statement in Special Finding (a) of the D & O for Case #01-02ZBA:

"The Board has found in the local climate (weather) that having a garage is nearly an empowerment and that to go without meant the property did not meet the "minimum practical" use standard. The property in question has a house which has provided shelter, at least on a seasonal basis, for perhaps 100 years. Due to the topography of the site and its tapered shape from back to front, without starting from scratch, there is no practical way to construct a garage and increase the living area of the house without the requested variance."

He stated that the empowerment was for a garage and not to increase the living area of the house. Chairman Withrow pointed out that the Board concluded that it would not be practical to build out 25' down the hill to the north portion of the property. Chairman Withrow stated he did not have a problem with this language and that it represents what the Board determined at the meeting.

The Board approved by voice vote the D & O for Case #01-02ZBA as submitted. I) OTHER COMMUNICATIONS None J) NEW BUSINESS

None K). PUBLIC INPUT, NOT RELATED TO OTHER AGENDA ITEMS None L). ADJOURNMENT The meeting was adjourned- at: 8:45 p.m. Respectfully submitted, Dianne Manore, Zoning Administrator