Minutes approved__________________

CITY OF CHARLEVOIX

BOARD OF APPEALS

Minutes

March 17, 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.

B) ROLL CALL

Members Present: Withrow, Horton, Cross and Eveleigh

Members Excused: Anderson, Miller and Nuttle

Staff Present: Bryan Graham, Assistant City Attorney, G. Harsch and D.Manore

C) DESIGNATION OF ALTERNATES

Ms. Eveleigh was designated as an alternate.

D) APPROVAL OF MINUTES

The minutes of February 18, 2004 were tabled to the next scheduled meeting.

E) APPROVAL OF AGENDA

The Agenda was approved as presented.

F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST

Chairman Withrow stated that since a family member works at the

Weathervane, he has a conflict of interest in Case #04-05ZBA.

G) PUBLIC HEARINGS

1. Public Hearing for Case #04-03ZBA - Crook - 502 –WITHDRAWN

Staff indicated that a letter of withdrawal has been included in the staff packet for Case #04-03ZBA.

2. Public Hearing for Case #04-05ZBA – Weathervane Restaurant

Staff received two (2) letters of support after the staff packets were mailed. These letters were presented to the Board at the meeting.

Mr. Dudley Marvin, Applicant explained that they would like to add an outdoor deck for 60-80 people. The site contains a wonderful historic building, but it is a difficult site to build on. It is very narrow, slopes down to the channel and contains a large USACE easement on the south side of the parcel. This limits what can be done on this parcel. Mr. Marvin showed the Board a similar plan that was drawn up in 1996. This plan was approved, but due to financial considerations, food and handicapped accessibility, this plan was not implemented.

Mr. Jeff Sprecksell, General Manager, stated that their customers have expressed the desire for an outdoor dining area. The Weathervane staff has come up with this proposal to meet these demands.

Traver Wood, Site Planning, was also present to answer questions for the Applicant.

Mr. Marvin pointed out that the existing cooler is in an inconvenient location and needs to be moved to the north side of the site. It is also encroaching into the front yard setback.

Motion by Horton Supported by Eveleigh

To designate June Cross as acting Chairperson for Case #04-05ZBA

The motion was approved by unanimous voice vote.

Bryan Graham reviewed the plans and setbacks with the Applicant.

He indicated that there are two existing decks on the south side of the building. It was determined that the deck to the west was an at-grade deck and the deck to the east was a second story deck. Mr. Graham asked if the proposed deck could be extended further to the west. Mr. Marvin stated they are trying to get the deck closer to the front of the restaurant closer to the bar area and Bridge Street.

Mr. Graham asked if there is any specific condition on the property that would preclude the Applicant from extending the deck to the west. Mr. Marvin stated the view from the lower level would be blocked.

Staff pointed out that Section 5.173(1) of the Zoning Ordinance allows open unenclosed decks/patios to project ten (10) feet into the front yard setback. The plans show that this is a narrow nonconforming lot.

Mr. Harsch addressed the parking issue. He stated the Applicant has submitted an agreement regarding parking. They currently have setting for 86 people in the lower level. The Applicant indicated that 60 people would be served on the proposed deck.

The Applicant is proposing an agreement stating that the lower dining room will be closed when the deck area is open. In this way, they will be accommodating the same number of patrons, which will not require additional parking.

Mr. Graham reminded the Board that the law requires that they make their decision based on the standards for approval contained in the ordinance. There must be findings of fact that establish that the standards have been met. The findings of fact must be based on evidence presented at this public hearing. Evidence can be statements made by the Applicant, the public and exhibits (or written documents).

The Applicant stated the existing location of the cooler is very inconvenient since there is only outdoor access. By moving it, the cooler would be more accessible. When the current deliveries are made, the truck blocks the entrance to the site and the highway. In addition, there have been thefts occurring at the current cooler location.

Mr. Graham pointed out that the evidence indicates that this is a narrow lot and the current cooler location is in the front yard setback. The proposed location would be in the side yard. The narrowness of the lot necessitates moving the cooler to the proposed location.

The Board reviewed the following findings of facts, as they relate to the relocation of the cooler.

SECTION 5.256(4) SITUATION FINDINGS OF FACT

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 the lot in question is a nonconforming lot of record, based on width.

2. The Board finds that the cooler is currently located in the front yard setback area.

3. The Board finds that due to the narrowness of the lot, there is no other location for the cooler except in the side yard setback area.

4. Therefore, the Board finds that standard (a) is met.

(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-created).

1. The Board finds that the nonconforming dimensional width of this lot were established prior to the enactment of the Zoning Ordinance and not due to actions taken by the property owner or previous property owner.

2. Therefore, the Board finds that this standard (b) is met.

(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 the existing cooler measures ten (10) feet by eight (8) feet.

2. The Board finds that the cooler is being connected to the main building.

3. The Board finds that the cooler is being placed a minimum distance from the building.

4. Therefore, the Board finds this request is the minimum variance necessary to place the cooler in the proposed location and grant substantial relief to the applicant.

5. Therefore, the Board finds that standard (c) is met.

SECTION 5.256(5)(A) FINDINGS OF FACT (Staff Draft)

(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 this property is zoned C-1.

2. The Board finds that within the C-1 zoning district, a restaurant is an allowed use.

3. The Board finds that in order to run this restaurant, a cooler is required.

4. The Board finds that strict application of the setback requirements would eliminate any other location for the cooler and therefore, the Applicant could not run a restaurant.

5. Therefore, the Board finds that this standard is met.

Motion by Eveleigh Supported by Horton

To grant Case #04-05ZBA a twenty-five (25)foot side yard setback variance to relocate the existing 10’ x 8’ cooler. This variance is granted on the basis that all the standards have been met.

Ayes: Horton, Cross, Eveleigh

Nay: None

Abstain: Withrow

Motion Carried

The Board addressed the request for a front yard setback variance of ten (10) feet.

Staff pointed out that Section 5.173(1) of the ordinance allows for open unenclosed decks to project ten (10) feet into the front yard setback.

The Applicant explained the need for handicapped accessibility to the deck.

Again, the Board determined that this lot is unique due to its narrowness. Mr. Graham stated the question is whether the narrowness of this lot requires a portion of the deck to be placed in the front yard setback. Can the deck be placed in a different location and still be utilized by the Applicant?

Traver Wood pointed out that the site’s steep topography prohibits the Applicant from placing the deck in any other location and still have barrier free access.

Mr. Withrow asked if a handicapped ramp would need a variance. Mr. Graham stated it would, and that the need for the variance is not due to the unique circumstances of the property, but due to the personal health reasons of the customer.

Mr. Withrow asked if the deck could be built inside the allowable front yard setback and still retain upper deck handicapped access. Is the requirement for handicapped access a reason for granting a variance? Mr. Graham pointed out that this deck does not need to have outdoor access.

Mr. Harsch suggested that the portion of the deck facing Bridge Street could be built within the front yard setback requirements and still have enough room to serve 60 patrons. By eliminating the easterly ten (10) feet of deck, the request for a front yard setback variance would not be needed and there would still be room for the handicapped accessibility.

The Applicant agreed to withdraw their request for the ten (10) foot front yard setback variance.

Mr. Graham stated that now the deck would be an allowed use by right. Therefore, there may be a need for a parking variance. By right, the Applicant is adding seats to the restaurant which will trigger increased parking requirements. Since no variance was granted for the deck, there is no way to add a limitation to public seating or parking. Mr. Harsch stated parking will be impacted and a parking variance will be needed.

Mr. Graham stated notification of a request for a parking space variance must be made at the next scheduled meeting. At that time the Applicant’s letter of limitation could be added as a condition of approval.

Mr. Graham pointed out that Staff is including the Findings of Fact in the minutes and also creating a Decision & Order for each case. The law does not require both. The Decision & Order form was intended to be an attachment to the minutes when findings are not addressed in the minutes.

H) UNFINISHED BUSINESS

1. Decision & Order For Case #04B01ZBA -Wine - 306 Nettleton

Chairman Withrow requested that the Decision & Order for Case #04-01ZBA-Wine be tabled to the next scheduled meeting to allow Staff time to make corrections.

2. Staff’s Memo – Mr. Engstrom’s Questions #4 And #5 On Assisted Living

Mr. Harsch pointed out that only question #4 needs to be addressed. Mr. Engstrom stated that question #5 also needs to be addressed.

Chairman Withrow stated that question #5 is an issue for the Planning Commission and not the ZBA.

Mr. Graham stated the Board needs to address Section 5.256(2)(b). It says that the Zoning Board has the power to interpret the Zoning Ordinance to classify a use into a comparable use category that is not specifically mentioned by the Zoning Ordinance.

You have a proposal for an assisted living facility that is not specifically mentioned in the Zoning Ordinance. This is done by looking at similar uses and determining where it should be located.

Mr. Graham stated that the proper procedure to do this is to notice this question for a public hearing. When the Board does an interpretation of the ordinance, notice must be given to the people within 300 feet to allow due process. Public notice should also be given in the newspapers, since the Board’s interpretations could effect the residents of the entire City.

Chairman Withrow stated the Board does not have enough information at this time. It also needs to be properly noticed.

Mr. Engstrom stated there was sufficient notice when he filed his request back in December of 2003. He stated that the City Manager

asked the Board to interpret this matter. Mr. Jim Young has indicated that this is not an appeal, but is an interpretation.

Mr. Graham stated the Zoning Ordinance classifies any action taken by this Board as an appeal.

Motion by Cross Supported by Withrow

To set a Public Hearing on April 21, 2004 to address Section 5.256(2)b) of the Zoning Ordinance. The interpretation involves classifying a proposed assisted living facility, a use not specifically listed in the Zoning Ordinance, into a comparable use category, or zoning district.

Ayes: Withrow, Cross, Horton, Eveleigh

Nays: None

Motion Carried

Chairman Withrow adjourned items #3 & #4 to the next scheduled meeting to allow a full Board to be in attendance.

3. Discussion Of Alternative Language To Section 5.256(4)(A) Of The Zoning Ordinance.

4. Discussion Of Proposed Language To Address The Granting Of Minimal Variances.

I) OTHER COMMUNICATIONS