Minutes approved__________________

CITY OF CHARLEVOIX

BOARD OF APPEALS

Minutes

April 21, 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, Nuttle, and Eveleigh

Members Excused: Anderson, Miller and Cross

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 2-18-04 and 3-17-04 were approved as amended.

E) APPROVAL OF AGENDA

Mr. Graham requested that G (2) be addressed as the first item under “G. ADVERTISED PUBLIC HEARINGS”.

F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST

None

G) ADVERTISED PUBLIC HEARINGS

2. Classification of an assisted living facility into a comparable use category or zoning district – Section 5.256(2)(b)

Mr. Graham stated that the Applicant and the City are making a joint request that the issue of the ZBA’s interpretation be adjourned to a time and date specific. Mr. Engstrom agreed.

Ms. Doan asked if there will be an opportunity for public input. Mr. Graham stated public input will be available, at that time.

Motion by Horton Supported by Eveleigh

To table G. Advertised Public Hearing, 2. Classification of an assisted living facility into a comparable use category or zoning district – Section 5.256(2)(b) to May 5, 2004 at 7:00 P.M. at the Coast Guard Training Center.

Ayes: Horton, Eveleigh, Withrow and Nuttle

Nays: None

Motion Carried

1. Public Hearing for Case #04-04ZBA – Gustin – 106 Palmer

Staff supplied the Board with two (2) letters of concern regarding this case; one from the Rangers and one from Mr. Sobleski (see case file).

Chairman Withrow introduced the case, noting that this request may fall within the requirements of Section 5.221(3) which state:

“If a residential structure on a nonconforming lot is nonconforming due to existing building encroachments into a required side yard setback, and if the nonconformance was created by the adoption of this Chapter, the City Zoning Administrator may approve and issue a Zoning Permit for construction, which will “in-fill” the building mass, extending the side yard encroachment:

a) Provided, the addition will not extend into the required side yard to any greater extent than the existing structure,

b) The addition will not encroach upon required front and rear yard setbacks,

c) The addition will not diminish the availability of light and fresh air to a neighboring property,

d) The addition is found, in the opinion of the fire chief, not to constitute a potential hazard,

e) Section 5.221 and its subsections shall not permit the in-filling of new construction.”

Mr. Withrow stated that this request represents a “vertical” in-fill and would not require a variance. He stated that the Applicant should have their $350.00 refunded.

Motion by Nuttle Supported by Horton

That the requested side yard variance does not require a variance since it represents “vertical” in-fill (Sec. 5.221(3). In addition, the Applicant should receive a refund of the application fee of $350.00.

Ayes: Eveleigh, Withrow, Nuttle and Horton

Nays: None

Motion Carried

3. Interpretation of Section 5.212(3) of the Zoning Ordinance

Mr. Graham referred to Staff’s memo of April 21, 2004, as follows:

Section 5.214(3)(j) states: “Establishments for Sale and Consumption on the premises, of beverage, food or refreshments. One (1) for each one hundred (100) square feet of floor space.

Section 5.6(11) of the Zoning Ordinance defines FLOOR AREA as:

“The area of all floors computed by measuring the dimensions of the outside walls of a building. Excluded are porches, terraces, breezeways, carports, verandas, garages, unfinished attics, attic floor areas with less than five (5) vertical feet from floor to finished ceiling and basements…”

Section 5.212(3) of the Zoning Ordinance states:

“FLOOR AREA as applied in this Section is that area used or intended to be used to serve patrons, clients, or customers, but excluding floor areas which are used or intended for use exclusively for storage, for housing of mechanical equipment integral wit the building, hallways or utilities or maintenance facilities. Measurement of floor area shall be the sum of the horizontal areas of the several floors of the building, measured from the interior faces of the exterior walls.”

Mr. Graham indicated that there is an internal inconsistency in Section 5. 212(3). He pointed out that Section 5.214(3)(j) dictates the number of parking spaces this use requires. Section 5.6(11) defines what a floor (area) space would be. Under this definition, a deck would be excluded from the computations for floor space. The beginning portion of Section 5.212(3) would include the serving of patrons on the proposed deck. However, the last sentence states: “Measurement of floor area shall be the sum of the horizontal areas of the several floors of the building, measured from the interior faces of the exterior walls.”

This is where there is an inconsistency. The issue before the Board is whether decks intended for seating of patrons should be included or excluded from the calculations of “floor area” for the purpose of determining parking space.

Mr. Nuttle asked if there are any other outdoor decks that serve diners. Staff stated they are unaware of any other similar outdoor seating arrangements. Mr. Harsch stated there are areas for outdoor eating, but they are on the sidewalks along Bridge Street.

Mr. Graham explained that the rules of statutory construction dictate that a “definition” section of the ordinance is considered general in nature. The other non-definition sections of the ordinance are considered specific in nature and would rule over a general definition section.

Mr. Nuttle suggested that the last sentence of Section 5.212(3) should not apply.

Staff explained that the restaurant does not currently have any parking spaces available. The current patrons park on Pine Rive Lane. This information is found in the staff report for Case #04-05ZBA (Item #4).

Motion by Nuttle Supported by Eveleigh

That Section 5.214(3)(j) is the dominate section of the ordinance that would apply to the number of required parking spaces per structure size.

Section 5.6(11) is more residential and not intended to be applied to commercial. It is more general in nature, therefore, it’s importance is secondary.

Section 5.212(3) states that floor area intended to be used to serve patrons, clients or customers can be enclosed or open.

The Board also finds:

1. Section 5.6(11) is a general definition and Section 5.212(3) is a specific provision dealing with parking. Under the rules statutory construction it would take precedence over the general definition.

2. The areas of the restaurant, such as storage, the housing of mechanical equipment, hallways, utilities or maintenance facilities would not be included in “floor area”, since they would not generate traffic, as would the areas serving the patrons.

3. The areas that would generate traffic would be the determining factor in calculating the number of parking spaces required.

Ayes: Withrow, Nuttle, Horton and Eveleigh

Nays: None

Motion Carried

4. Public Hearing for Case #04-05ZBA – Weathervane – parking

Staff indicated that no correspondence has been received regarding this case.

Chairman Withrow called the case, noting the Applicant is requesting a parking variance for fourteen (14) new parking spaces. The Board found the following facts to be true:

SITUATION FINDINGS OF FACT:

1. The Board finds that this C-1 property is located at 106 Pine River Place in the City

of Charlevoix and is owned by Channel Properties, Inc.

2. The Board finds that this parcel is approximately 16,858 sq. ft. in area and that the existing structure was built prior to the enactment of the zoning ordinance.

3. The Board finds that the lot in question is approximately 93’ wide, contains steep topography and is constrained between the Pine River Channel and Pine River Place.

4. The Board finds that the lower indoor level of the restaurant currently serves 86 patrons.

5. The Board finds that the existing restaurant contains approximately 5,000 sq. ft. of dining area.

6. The Board finds that Section 5.214(j) of the Zoning Ordinance requires:

“Establishments for sale and consumption on the premises of beverage, food or refreshments require one (1) parking space for each one hundred (100) square feet of floor space.”

7. The Board finds that the existing restaurant requires fifty (50) parking spaces.

8. The Board finds that the existing site has no available parking spaces for the current restaurant. Patrons park on both sides of Pine River Lane. Therefore, this site is nonconforming due to a lack of space for parking.

9. The Board finds that the proposed deck meets the setback requirements and contains approximately 1,398 sf of area.

10. The Board finds that the Applicant would need an additional fourteen (14) parking spaces to serve the outdoor patrons.

11. The Board finds that the Applicant has submitted a letter of limitation (Exhibit D) agreeing that the lower dining area and proposed deck area will not operate concurrently.

12. The lower level of the restaurant contains approximately 800 sq.ft. and would need eight (8) parking spaces.

13. The existing lower level outdoor deck contains an additional 288 sq. ft. of area.

SECTION 5.256(4) 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 and ability to provide parking.

2. The Board finds that due to the narrowness of the lot, there is no area for existing or future parking.

3. 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-create).

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

2. The Board finds that the fact that the parcel does not contain any parking area pre-dates the establishment of the ordinance.

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

Mr. Graham pointed out that this is a nonconforming restaurant that had the ability to serve patrons on the upper deck and lower deck of the existing restaurant. By right, the Zoning Ordinance allows a deck. In order to use this deck, you need fourteen (14) additional parking spaces. By eliminating the lower deck and dining area, that is a way of saying they will not increase the nonconformance, since the lower interior dining area will not be used during the summer months. At most, the only increase in the parking nonconformity will be two (2) spaces. If they have the deck, they will need fourteen (14) additional parking spaces. They will need a variance with the condition that the lower levels be eliminated simultaneously.

(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 the requested deck is allowed by the Zoning Ordinance.

2. The Board finds that to use the deck which meets the requirements of the Zoning Ordinance, a variance of fourteen (14) parking spaces is required.

3. Therefore, the Board finds that the request for a variance of fourteen (14) parking spaces is the minimum variance necessary to allow the owner to use the proposed deck.

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

SECTION 5.256(5)(A) FINDINGS OF FACT

(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. A restaurant is an allowed use in the C-1 zoning district.

2. The Board finds that the existing restaurant contains approximately 5,000 sq. ft. of dining area, which would require fifty (50) parking spaces (Sec. 5.214(j)) .

This is a pre-existing nonconforming situation which will not change.

3. The Board finds that the Applicant has submitted a “letter of limitation” (see attached) that offers a restriction to the lower dining area any time the exterior upper dining area is in use. This restriction was based on a voluntary act by the Applicant.

4. The Board finds that the lower outdoor deck area will not be used when the new deck area is in use.

5. The Board finds there is no room for parking on this site, due to the size of the building and the narrow constraints and steep topography of the lot. Patrons park along either side of Pine River Lane, a City Street.

6. Therefore, the Board finds that conformity with the parking requirements of the Zoning Ordinance, with regard to the proposed deck, would render conformity unnecessarily burdensome. This is due to the Applicant’s proposed restriction on lower level dining which would result in no additional parking.

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

Motion by Nuttle Supported by Eveleigh

To grant a variance for fourteen (14) parking spaces to provide outdoor dining for their patrons. This variance is granted that all the standards have been met and subject to the following condition:

1. During the time the Applicant uses the outdoor elevated deck to serve patrons, the Applicant shall not simultaneously use the lower level of the restaurant and the lower exterior dining area to serve patrons.

Ayes: Nuttle, Horton, Eveleigh and Withrow

Nays: None

Motion Carried

Mr. Horton expressed concern that there will be an enforcement problem with this variance, especially if there are future owners involved. Mr. Harsch stated that with the City’s new GIS system, there will be a link to every property with every action taken with that property. There will be an instant record of what the Board of Appeals did.

If the lower space is used and it is reported, it is the Zoning Administrator’s responsibility to issue a ticket. Mr. Graham pointed out that a court order could also be issued by a Judge to bring the property back into compliance with the approval.

It was pointed out that variance approvals run with the land and not with the owner.

H) UNFINISHED BUSINESS

1. Decision & Order for Case #04B01ZBA -Wine – as amended

The Board approved the amended Decision & Order for Case #04-01ZBA, as amended

2. Discussion of Ordinance standards – 5.256(4) and minimal variances

Mr. Graham presented the Board with a memo addressing minimum dimensional variances. (see attached). Mr. Graham stated the Board would have to define (in the Ordinance) by amendment, what a minimal variance would be. That minimal variance would then have to have to apply an entirely different set of standards.

This is a policy question and not a legal question. It is also a planning question as to where the line should be drawn.

The Board agreed that an amendment would be very difficult to draft and where the line will be drawn. Most municipalities do not address minimal variances

Mr. Nuttle withdrew his request to amend the Ordinance to allow minimal variances.

Mr. Graham stated that Mr. Young is in the process of preparing a training seminar. He asked if there are any areas of concern that the Board would like to address. The Board agreed that Mr. Young should address the phrase “and is not due to the Applicant’s personal or economic situation.”

The Board requested that the Ordinance be amended to eliminate the phrase: “and is not due to the Applicant’s personal or economic situation.”

I) OTHER COMMUNICATIONS