CITY OF CHARLEVOIX

BOARD OF APPEALS


Minutes




April 18, 2001
City Hall - 1st Floor

7:00 P.M.


A) CALL TO ORDER


The meeting was called to order by Vice-Chair Cross at 7:00 P.M.

B) ROLL CALL

Excused: Withrow
Staff Present: Gerry Harsch & Dianne Manore

C). DESIGNATION OF ALTERNATES

Mr. Ostling was designated as alternate

D). APPROVAL OF MINUTES

The minutes of February 21, 2001 were approved as presented

E) APPROVAL OF AGENDA

The Agenda was amended to add an item to new business

F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST

None



G) PUBLIC HEARING

1. Case #01-10ZBA - McKenna - 308 Mason

Mr. Dave Kimble, Contractor for the Applicant introduced the case. The Board discussed the calculations and dimensions shown in the staff report.

Mr. Nuttle asked if the Applicant agreed with staff's calculation of lot coverage of 29.54% and 34.5% after adding the proposed addition/garage. Mr. Kimble agreed with Staff's figures.

Mr. Kimble indicated that the Applicant would like to remove the existing garage since it is not in compliance and over the adjacent property line. He would like to get closer to compliance. The garage has been reduced to minimal size to accomplish this. Mr. Kimble asked if the Board would like him to answer to the general and special findings (5.256).

Mr. Nuttle asked the square footage of the garage to be removed. Ms. Manore pointed out that it is 12.3' x 22.3 without eaves. Staff indicated that the existing garage was included in the calculations.

Mr. Harsch explained that the five (5) general findings must be addressed by the Board, as well as the three (3) special findings.

Mr. Kimble addressed the following findings:

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

He stated that the public interest will be better served by the Applicant coming into compliance with the existing code.

Ms. Cross pointed out that the ordinance requires a maximum lot coverage of 30%, which the Applicant will not have. Mr. Kimble agreed with Staff's figures. Mr. Nuttle pointed out that the lot coverage would be 34.5%.

Mr. Ostling asked if the Applicant has considered alternate locations for the garage. Mr. Kimble stated they did consider locating the garage on the other side of the site. Mr. Ostling stated he visited the site and considers this plan a good idea. Notwithstanding the Applicant may have a topographical problem in the rear yard, it may constrain the Applicant from putting the garage in the rear of the lot.


Mr. Kimble pointed out that any garage would be an improvement to what exists.

Ms. Cross stated that a variance for lot coverage is not the only variance being requested. Ms. Cross read the list of variances requested.

Ms. Manore explained how the area of the rear yard and existing structures are calculated to determine "rear yard lot coverage".

Mr. Kimble addressed item #2:

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

He stated that this request will not change the use and no zoning changes are being requested.

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

He stated the Applicant is not coming back to ask for any more variances.

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

He stated that the "adverse" condition is what currently exists on the property, with the existing garage which is on the adjacent properties.


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



Mr. Kimble stated this applicant only relates to the property in question and would remove the garage from the neighbors property.

Mr. Nuttle reviewed Staff's findings. He asked Staff to explain the difference in the square footage of the structure. Ms. Manore explained that the 1,656.35 sq. ft. figure refers to the footprint and the 3,000 and 4,200 sq. ft. figure refers to the actual living space contained in the existing and proposed structure. This is a 2 ½ story house. If approved, there would be 4,200 sq. ft. of living space on a 6,500 sq. ft. lot.
Mr. Kimble stated that there are a lot of 2 ½ story houses with full basements in this area. This house is not out of character with the neighborhood.

Mr. Ostling asked if everyone is satisfied with the figures presented. Ms. Cross pointed out that there is too much coverage for the lot. Mr. Ostling stated that may be, but is pretty close. Generally speaking, this garage is an improvement.

Mr. Kimble addressed the "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.

He stated that the Applicant does not have a garage and would like one attached to the house. This is the Applicant's main objective. He has not parked a car in the existing garage for five (5) years. There is no financial gain relating to this request.

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.

Mr. Kimble stated that based on the shape of the lot and the position of the house on the lot, there is no place to locate a garage in any other spot.


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

Mr. Kimble stated that by removing the nonconforming garage, it is helping the adjacent property owners.

Mr. Nuttle asked if eliminating the second story above the garage would change the lot coverage percentage. Staff indicated that lot coverage is based only on the foot print. If the 12' x 24' garage was the only structure built, the lot coverage would be reduces.

Mr. Kimble indicated that the portion of the addition to the rear of the house is also garage, which would be used for the storage of garden equipment and snowmobiles.

Mr. Anderson asked if the second story and loft has a bearing on the lot coverage. Mr. Harsch explained that if only a garage was added, that garage can extend into the rear yard. This is not what they are doing. They are adding significant living space. The footprint also includes the eaves.

Mr. Harsch pointed out that the Applicant agrees with Staff's figures.

Mr. Nuttle asked if the footprint stays within the ordinance, the only thing that would stop anyone is the height restrictions in the ordinance. Mr. Harsch stated that is correct. He stated that garages can extend into the rear yard. However, we do not allow living space to extend into the rear yard, as proposed on the second and third floor. Mr. Nuttle and Mr. Harsch reviewed the proposed site plan. Mr. Harsch stated the required rear yard setback is thirty-five (35) feet. He pointed out that the existing structure is already nonconforming since the house extends out into the rear yard past the required setback.

The question is whether the rear yard should contain more than 30% of ground coverage, including eaves. Mr. Nuttle pointed out that the Applicant wants 4.5% more lot coverage. Mr. Harsch stated this is structure coverage. There are two (2) measurements, one is a measurement of how the total structure relate to the total lot. The second relates only to the portion of the structure in the rear lot and its relation to the rear portion of the lot.


Mr. Harsch explained that in this case, the existing structure is already nonconforming. The house extends into the front and rear yard setbacks.

Mr. Nuttle stated the two questions before this Board. Should a variance be granted for the garage and the living space over the garage.

Ms. Manore pointed out that if the existing garage were removed, a 12' x 24' garage could be built behind the house without the need for a variance. A garage could also be placed in the corner which could be located 6' from the rear setback and 10' from the
side yard setback.

Mr. Harsch stated that a significant amount of the rear floor plan calls for space to be used for a furnace, water heater and stairs, which are not part of the garage.

Mr. McKenna stated that furnace is part of the heated garage. Mr. Harsch asked if that furnace is just for the garage.
Mr. McKenna stated it would be all the way up, but there would be some sort of furnace there if it was just for the garage.

Mr. Ostling asked staff for clarification. He stated that the first floor garage plan does not take up any more space whether he uses it or not. He read the four requested variances. He stated that from his perspective, it would be ok this way.

Mr. Harsch explained that the Board must go through the general and special findings of fact. Ms. Cross pointed out that there would be more lot coverage than is allowed by the ordinance. Mr. Ostling stated that is probably true, but that is what the variances are for. Ms. Cross stated that if there are other alternatives, they (the Board) cannot grant the variances.

Mr. Harsch stated that if the Applicant only built the garage, with no living space, he would only need a side yard variance. Mr. McKenna stated that would be a small garage. He pointed out that he is trying to get additional storage space. Mr. Harsch stated the garage could be extended to the rear for more storage space.

Ms. Cross opened the hearing to public comment.

Mr. Larry Boog, 310 Mason, stated he purchased his house in 1986. At that time Mrs. Green stated the existing garage would be removed. Four years ago, Mr. Morrow at 312 Mason received numerous variances for a garage for his renters. This garage is within three (3) feet of the property line. He suggested that the garage is currently on his property line. He pointed out that the renter does not park in the garage. This garage is being used for Mr. Morrow, which was not the way the variance request was presented.

Mr. Boog asked why the Applicant is building so high. He pointed out that variances are not granted for financial gain. He suggested that the addition above the garage will probably be rented, as the house is during the summer months. He asked how enforcement occurs. He agreed that the existing garage needs to be removed. He stated that he is being crowded on both sides.

He pointed out that there are very few, if any three story houses on Mason. This house is the largest house on the block. He feels it would effect the marketability of his property.

Mr. Kimble stated the addition is conforming in height with the existing structure. He stated that the nonconforming garage setback is being reduced and not increased, with the demolition of the existing garage.

Mr. Anderson asked if this property is occupied by the owner. Mr. Kimble stated it is. Mr. Kimble stated we all have the right to rent out our house during the summer. Mr. Anderson asked if the house is occupied by the owner. Mr. Kimble stated it is.

Mr. Harsch stated this property has been used as a rental property. Mr. McKenna stated that, on an average, the house has been rented once a year for five years. Mr. Anderson questioned whether this will be a duplex section on the rear of the property.

Mr. Kimble ensured Mr. Ostling that the property would be surveyed prior to building. Mr. Ostling pointed out that the addition appears to be an apartment. Mr. McKenna stated it is for his kids. Originally, this was a two family residence.

Mr. Boog stated that in the past, he has inquired about renting this property. He was told it was available by the week and for weekends.

Mr. McKenna, Owner, stated his neighbor, who he has never met, did call inquiring about rental rates.

The Board reviewed the general findings. Ms. Cross asked the Board to vote on Item #1 of the general findings:

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

Motion by Hodgson, Supported by Anderson

The proposed variance lot coverage represents an overcrowding of the land and does not meet the conditions set forth in Item #1 of the general findings.

Ayes: Nuttle, Hodgson, Cross, Ostling and Anderson
Nays: None
Motion CARRIED

Motion by Hodgson Supported by Anderson

to deny the requested variances for Case #01-10ZBA - McKenna on the basis that general condition #1 has not been satisfied.

Ayes: Hodgson, Cross, Anderson and Nuttle
Nays: Ostling
Motion CARRIED


2. Case #01-16ZBA - Seymour - 629 Petoskey Ave.

Ms. Cross called the case. Mr. Harsch stated that if this request for a parking variance, the request for a Special Use Permit will go forward to the Planning Commission.

Staff referred to Section 5.212(4), pointing out that the Board's guidelines would be whether the Applicant can demonstrate that the amount of required parking is not required under this circumstance. However, if the required parking is needed that there is sufficient area on the property for this parking.

The Board reviewed Sections 5.214(d) and 5.214(a). Based on these two requirements, the Applicant would need eight (8) spaces. Staff pointed out that there is sufficient room on this lot for eight spaces.

Mr. Harsch pointed out that Ms. Seymour resides on this property and will be the only operator. This would eliminate the need for a space for an off-site employee. The garage counts for one space. Mr. Nuttle asked if this variance goes with the land or the business owner.

Mr. Harsch pointed out that the Board could grant this variance based on the finding that:

a. The Applicant is the resident/occupant of the building,
b. The Applicant is also the only single operator of this business.

If the Applicant leaves or adds another operator, then this variance would be void, unless the Board places special conditions to granting the variance. Another person could purchase this business and still be the sole operator.

Ms. Seymour pointed out that there is room on the property for all eight (8) parking spaces. The additional parking spaces would have to be either stabilized or paved. Due to the added cost, this is the main reason that the Applicant would like to reduce the number of spaces. Ms. Seymour stated she may wish to employ a part time manicurist.


Motion by Anderson Supported by Ostling

to grant a parking variance for Case#01-16ZBA to allow five (5) parking spaces instead of the required eight (8) spaces, with the following conditions:

1. That this business remains a one (1) person operation.

2. That there will be five (5) parking spaces

3. In the event that an employee is hired, one (1) parking space will be added.

Ayes: Cross, Anderson, Ostling, Nuttle and Hodgson
Nays: None
Motion CARRIED



3. Case #01-18ZBA -Powel - Mercer

Mr. Traver Wood, for the Applicant introduced the case. He stated the Applicant would like to build a two story house on Mercer Street. He stated that the property immediately off of Mercer drops dramatically. He calculated that there is a fourteen (14) foot drop from the edge of Mercer to the ground.

He pointed out that the first floor level would be four (4) feet below Mercer. At this point we are looking at a two (2) story home. Of the eight houses on Mercer, seven (7) are two story homes. From Mercer, this house will look like a 1 ½ story house. This design is consistent with what exists in the neighborhood.

He stated that similar height variances that have been granted was for the entire structure. Our height request is only for a small portion of this structure.

Ms. Cross asked if the structure could be built into the hill. Mr. Wood stated they are restricted by the setback. Mr. Anderson asked the height of Mr. Gill's house. Mr. Wood stated this structure will be lower. Mr. Wood stated there will be huge amounts of fill required to build this house.

Mr. Harsch stated that there are similar situations with walk- outs. This is accomplished through the use of "dormer" windows which lowers the roof level. He pointed out that a residence on this property could be designed to accomplish that.

Mr. Anderson pointed out that eight (8) feet is a lot to ask for.
Mr. Nuttle asked what will be in the lowest level. Mr. Wood stated there will be mechanical, storage and living space. Mr. Nuttle stated this level appears to be a walk-out basement. Mr. Wood stated that if this is determined to be a basement, there is a provision for a percentage of the area. The current drawing does not meet the criteria for a basement.

Mr. Harsch pointed out that the definition of a basement has been included in the staff report. By the definition, this plan does not have a basement. Mr. Harsch explained that the square footage of all the walls would be calculated, with 50%+ of that coverage to be filled with dirt.

Mr. Harsch stated that once this level qualifies as a basement there is a provision that allows for an intrusion. This intrusion allows for the minimum amount of glazing allowed by the building code. This would allow that amount of open space on this level which would not qualify for the height measurement.

Mr. Wood indicated the level of additional fill that would create a "basement" area. Mr. Harsch stated that would not meet the criteria since he would still have to meet the minimum requirement for the glazing area.

Mr. Wood stated the BOCA code requires at least 8% of glazing area. However, the zoning ordinance states the BOCA requirement of 8% must be met, but that intrusion cannot be over 8%.

Mr. Ostling asked why we require structural obsolescence in order to maintain the zoning ordinance. The Applicant has a great, this is not an unreasonable structure. Ms. Cross stated the Board must address the general and special findings.

Mr. Harsch illustrated the height requirements. The ordinance requires that if a basement is proposed with living space, glazing must be included in the plans. The ordinance allows for an intrusion below grade to the extent that you can have the minimum glazing without counting the height of the building. If the finished grade can be wrapped around the building, and accommodate the minimum glazing area, he would not need a height variance. Another option, is to lower the roof with dormers. The proposed roof cannot meet the height requirements.

Mr. Harsch pointed out that this ordinance requires height measurements to be taken at the lowest finished grade on the site to the mid point of the roof. If the grade is raised and the minimum glazing area has been met or the style of roof is changed, a variance would not be required.

Mr. Anderson pointed out that the house next door is higher. He suggested that just bringing in additional dirt seems foolish. Mr. Nuttle expressed concern that if a variance of eight (8) feet is allowed, then what happens when ten (10) or twelve (12) feet height variances are requested.

Mr. Wood stated that during the preliminary review, it was his understanding that he could build this house with additional fill.

Mr. Hodgson pointed out that this is a vacant lot and that anything could be done with this structure. Ms. Cross suggested that the Applicant return with a plan that does not need a height variance.

Staff provided the Board with correspondence (see attached)from the following residents who were opposed to this request and asked that the Board adhere to the existing zoning requirements.

Jack & Diane Barker, 324 Cherry Street
Charles & Barbara Glueck, Cincinnati, Ohio
Mr. & Mrs. Stilson, 212 Cherry Street
Mr. Hans Tschurtschenthaler, Elm Street

The following correspondence supported the request:

Timothy & Adrienne Ives, 320 Cherry Street

The Board discussed whether this request should be tabled. The Board reviewed the general and special findings. The Board agreed that this proposal met all the general findings except

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

The use is one which is allowed in the 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


Motion by Hodgson Supported by Nuttle

That general finding #4 has not been met due to the fact that the requested height variance is excessive. Based on the correspondence received from the residents in the immediate vicinity, this proposal would be a substantial adverse effect.

Ayes: Nuttle, Hodgson and Cross
Nays: Ostling and Anderson
Motion CARRIED


Motion by Hodgson Supported by Nuttle

to deny the requested height variance for Case #01-18ZBA based on the fact that general finding #4 has not be meet because of the degree of the variance requested and the impact on the surrounding properties in the immediate vicinity.

Ayes: Nuttle, Hodsgon and Cross
Nays: Ostling and Anderson

Mr. Wood stated they would still like to turn the ground level into a basement. He reviewed the BOCA requirements and the City's requirements with Staff. Mr. Harsch stated the intent is to minimize the intrusion. Mr. Wood suggested that the retaining walls could be extended to the required height. He pointed to the side elevations and the proposed glazing area. The question is meeting the BOCA requirements and the requirements of the City zoning ordinance. If the plan meets the requirements of the ordinance, the Applicant will not have to reapply or come back before the Board.

H) OLD BUSINESS

The following D & O's were approved by voice vote, as presented:


I) OTHER COMMUNICATIONS

None



J) NEW BUSINESS

The Board agreed to set a special work session with staff, Board members and Mr. Jim Young, City Attorney

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

None

L). ADJOURNMENT

The meeting was adjourned at: 9:30 p.m.


Respectfully submitted,

Dianne Manore, Zoning Administrator