CITY OF CHARLEVOIX

BOARD OF APPEALS

Minutes



May 21, 2003
City Hall - 1st Floor

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, Witthoeft, Anderson and Miller
Members Excused: Cross and Nuttle

C) DESIGNATION OF ALTERNATES

Mr. Horton and Ms. Miller were designated as voting members of the Board.

D) APPROVAL OF MINUTES

The minutes of February 19, 2003 were approved as reviewed.

E) APPROVAL OF AGENDA

Staff requested that two items be added to Old Business

F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST

There were no potential conflicts of interest



G) PUBLIC HEARINGS

1. Case #03-10ZBA -308 Mason - McKenna

Chairman Withrow called the case.

Mr. Dave Kimble, Contractor was present to answer questions for the owner. Mr. Kimble reminded the Board that the owner appeared before the Board with a different garage design in 2002 (which was denied). This proposal has been scaled down. The existing garage is almost a hazard, and definitely an eye-sore. Mr. McKenna would like a single story garage. The existing garage would be removed and the new garage would be moved away from the property line.

Chairman Withrow asked Mr. Kimble if the information given is self-explanatory. Mr. Kimble stated he filled out the application and that it is self-explanatory.

Mr. Larry Boog, 310 Mason, stated his property is next door to this property. He reviewed last years proposal. He stated the garage will sit on the property line. He pointed out that there are other locations to put the new garage. Mr. Boog expressed his opposition to placing the garage on the property line, since the lots are so narrow. It would negatively effect the value of his property.

Staff stated that one letter of opposition was received from Mr. R.J. Waddell of 303 Mason.

Mr. Chuck Morrow, 312 Mason, asked for a review of the requested variances. Chairman Withrow stated the following variances of 10' in the side yard setback, 1.5% lot coverage and 5.42' between structures are being requested. Mr. Morrow asked if the Applicant would consider attaching the proposed garage to the house. Mr. Morrow pointed out that a garage is more of a necessity than a luxury. The Application has a large home on a small lot.

Chairman Withrow stated that attaching the garage was discussed with the Applicant, but his request is as stated.

It was pointed out that there are two meters on the house. It was determined that there are two rental units in the house. Access is only through the front door and not the rear of the building.

Mr. Kimble stated there is no way to attach the garage to the house due to the roof lines and access to the house from the garage. He stated there would not be enough room to back a boat into the garage if it were built in the rear yard.

Chairman Withrow stated that if a new structure is built, it would have to meet all the requirements of the ordinance.

Staff stated that during discussions with the Applicant, it was determined that the reason for the garage location and size was due to the Applicant's desire to store his large boat in the garage in the winter and his car in the summer.

Mr. Boog pointed out that during the previous request, it was determined that a garage could be built on the property without the need for variances. Staff stated the previous two story garage was to be attached to the rear of the house.

Staff indicated two typos on pages 11 & 13 of the staff packet. The Board was requested to change item (f) from "I" to "H". Item (d) should be changed from "I" to "H".

Chairman Withrow referred to the application. The Applicant's answer to Item "b" states that this is not a self-created thing. The application indicates that (it is possible) that in 1920, the owner owned more adjacent property. However, there is no statement of fact or evidence to that effect.

Chairman Withrow referred to the Applicant's answer to Item "c" that addresses the accommodation of cars. In the past, the Board has concluded that the ability to have a garage to store a car makes a lot of sense. However, storing a boat in the winter is a different matter. There are other locations where people store their boats.

A.J. Witthoeft stated that in the past, Staff has supplied the Board with other similar cases in the same zoning district. He questioned why this is not being done. Staff explained that past variances are not being reviewed. City Council passed new standards which do not include previous cases.

Mr. Bryan Graham, City Attorney stated the Board now goes strictly by standards of the Zoning Ordinance and whether the applicant has demonstrated, by evidence at a public hearing, whether those standards have been met.

Chairman Withrow asked if the Board had any questions regarding the applicant's request and the plans submitted. Staff stated that the applicant's figures changed due the addition of the eaves. The proposed plan can be seen in item "f".


Mr. Graham stated the law requires the Board to make their findings of fact based on the evidence presented. Staff has prepared some general findings of fact that paint a picture with words of the case at hand. Staff has also proposed findings of fact for the standards of the ordinance. It is important that the Board understand it is your decision and not Staff's decision to make. These are only presented as a starting point. The Board should always feel free to change, modify, reject or accept anything in Staff's draft. Whatever finding of fact that is made must be based on the evidence before this Board.

The record is clear that Staff is not telling the Board how to rule, the findings are only guidelines.

Chairman Withrow reviewed the "general findings", as found in the Staff Report.

1. The property is located at 308 Mason. The property is zoned R-2 Single Family Residential. The dimensions of the lot are 66' x 99'.

2. The Applicant is proposing to remove the existing nonconforming garage and construct a single story detached accessory structure measuring 13' x 31' (403 sq.ft.).

The existing principal structure (w/1'eaves) contains 1,656 sq. ft. of area. The existing garage (no/eaves) contains 274.29 sq.ft, of area for a total of 1930.29 sq.ft., or 29.54% in lot coverage.

3. Section 5.43(3) of the zoning ordinance states: "There shall be a side yard of not less than ten (10) feet on each side of any dwelling excepting the street side of a corner lot, which must abide by the regulations of this Chapter for front yard area."

4. The Applicant is proposing to construct a garage on the west property line. Therefore, the Applicant is requesting a ten (10') foot side yard setback variance.

5. Section 5.32(8) of the zoning ordinance states: "One (1) detached accessory building not more than sixteen (16) feet or one (1) story in height. A detached accessory building shall not be less than ten (10) feet from the principal building and shall not be closer to the side lot lines than the distance allowed for the principal building or the existing building line. An accessory building shall not be allowed in the front yard. The detached accessory building shall be no closer than six (6)
feet to the rear lot line."


6. The Applicant's proposed placement of the garage will be within 4.58' of the principal structure. Therefore, the Applicant is requesting a variance of 5.42' between the principal building and the detached accessory building.

The Board noted that the six (6) foot rear yard setback is being maintained.

7. Section 5.43(1) of the Zoning Ordinance requires: "The minimum lot area for use in this zone shall be nine thousand (9,000) square feet and shall have a minimum width of seventy (70) feet at the building line. The building and/or structure shall not consume more than thirty percent (30%) of the usable lot area."

8. Therefore, the 66' width at the building line makes this lot nonconforming, as does the 6,534 sq. ft. of area.

9. The proposed 13' x 31' garage (w/6"eaves) contains 403 sq. ft. of area. The existing principal structure (w/eaves)contains 1,656 sq. ft. of area. This is a total area of 2,059 sq. ft, which constitutes a lot coverage of 31.5%. Therefore, the Applicant is requesting a variance of 1.5% in lot coverage.


11. See Item 5 of the General Findings.

12. Therefore, a detached accessory structure is allowed in the R-2 zoning district.

13. The Applicant has indicated that part of the request relates to
winter storage of the Applicant's boat.

The Board agreed with the general findings as amended.

SECTION 5.256(4) FINDINGS OF FACT (Staff Draft)

The following three (3) standards, as found in Section 5.256(4) of the zoning ordinance must be met:

1. 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.


b. Section 5.42 states: "Land and/or buildings in R-2 may be used for any use permitted in the R-1 zone district. All provisions of the R-1 zone district shall apply, except as herein provided."


d. Therefore, a detached garage is a permitted use.

e. Section 5.43(3) of the zoning ordinance states: "There shall be a side yard of not less than ten (10) feet on each side of any dwelling excepting the street side of a corner lot, which must abide by the regulations of this Chapter for front yard area."

f. Exhibit H indicates that a one car garage could be built that measures 12' x 20' or 13' x 21', with 6" eaves.

g. As evidenced by Exhibit I, if a 13' x 21' detached garage were built in the rear yard, the side and rear yard setback requirements could be maintained. However, because of the small size of the lot, the garage will be located .84' closer to the principal building than the 10' requirement.


The Board added that this alternative would meet the lot coverage requirements of 30%.


i. However, the need for constructing a garage .84' closer to the principal building is due to the small size of the lot.

j. The reason the Applicant gives for not placing a garage in the rear yard is because of an inability to back a boat into the garage. This reason, however, relates to the owner's


k. The need for the requested variances is based on the personal desires of the Applicant and not due to any unique circumstance or physical condition of the property.


The Board agreed with the findings found in SECTION 5.256(4), as cited above. Chairman Withrow pointed out that at this point, the Board could stop since these standards have not been met.

Mr. Kimble asked if it is the Board's function to determine the use of the building. Chairman Withrow stated it may have a roll from the standpoint that the dimensions of the building could be reduced, if used for a car. This Board has determined in the past that a garage is a reasonable use and requirement for living in this area.

Mr. Graham explained that the use of the proposed garage is relevant because the Applicant has raised this issue. The Applicant has stated that he cannot put the garage in the rear yard because he cannot back in his boat. This brings into play the use of the property. The Board is deliberating toward the fact that the use is personal in nature and does not relate to the unique circumstances of the property. The Board agreed.

Mr. Kimble questioned whether there is enough room to get a car in and out of a garage located in the rear yard.

2. 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).

a. No actions have been taken by the property owner or
previous owner that were in violation of the zoning regulations, in effect at the time.

b. As indicated in paragraph 1(g) above, a detached accessory garage could be built in the rear yard with only a .84'

requirement.

of the personal desire of the Applicant to build the garage
on the property line large enough to store a large boat.

personal desire of the Applicant, which is a self created
practical difficulty.

The Board agreed with the FINDINGS OF FACT, as outlined in SECTION 5.256(4) of the Ordinance.

3. The requested variance is the minimum variance necessary to grant substantial relief to the Applicant while at the same time minimizing any adverse impacts to other property owners in the general neighborhood or zoning district.

a. The requested variances are not the minimum variances necessary to build a garage. Exhibit I shows that a 13' x 21' (w6"/eaves) single car garage can be built in the rear yard. The size and location of this garage would require one variance of .84' between structures. It would meet the required rear yard setback of 6', the required side yard setback of 10' and the lot coverage requirement of 30%.

b. The adverse impact to the adjacent property owner to the west will increase since the size of the proposed garage will increase the nonconformance in the side yard setback and will increase the lot coverage from 29.54% to 31.5%.

c. Maintenance of the proposed or existing garage could not be done without trespassing onto the adjacent property to the west.

d. Therefore, this standard is not met.

The Board agree with the above Findings of Fact as amended.

Mr. Graham explained that Section 5.256(4) deals with all type of variances. Section 5.256(5)(A) deals strictly with dimensional variances.


SECTION 5.256(5)(A) DIMENSIONAL VARIANCE FINDINGS OF FACT (Staff Draft)
1. 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.

a. Section 5.42 states: "Land and/or buildings in R-2 may be used for any use permitted in the R-1 zone district. All provisions of the R-1 zone district shall apply, except as herein provided."

b. Section 5.32(8) of the zoning ordinance allows: "One (1) detached accessory building not more than sixteen (16) feet or one (1) story in height. A detached accessory building shall not be less than ten (10) feet from the principal building and shall not be closer to the side lot lines than the distance allowed for the principal building or the existing building line. An accessory building shall not be allowed in the front yard. The detached accessory building shall be not closer than six (6) feet to the rear lot line."

c. Therefore, a detached accessory structure is a permitted use in the R-2 zoning district.

d. Exhibit H indicates that a one car garage could be built that measures 12' x 20' or 13' x 21', with 6" eaves.


f. Building a garage in the rear yard will only require a small


g. Therefore, a minimum variance of .84' between structures will allow the Applicant to construct a detached accessory garage in the rear yard.

h. Therefore, this standard is not met.

Mr. Anderson asked if the garage was attached to the house, would the side yard setback change. Staff stated a lesser side yard variance of 5.5' would be necessary. It was suggested that the Applicant built and expand the garage on the existing footprint. The existing garage is 12' x 22'. Staff pointed out that no calculations have been made based on this suggestion.

Mr. Graham pointed out that the question before this Board is only the three requested variances. The decision is based on this request and whether the standards have been met.

Mr. Anderson stated that they are public servants and are trying to help out the Applicant. Mr. Graham stated there is not a problem with proposing alternatives, but that the Board's decision must be from a legal perspective based on the standards in the Ordinance.

It was pointed out that a garage could be built with a minimum variance. Chairman Withrow stated that the Applicant could restore the existing garage with no variances. Staff stated that all those options were discussed with the Applicant.
Motion by Withrow Supported by Witthoeft

That Case #03-10ZBA - McKenna - 308 Mason for the requested variances of: Section 5.43(3) 10' side yard setback, 5.32(8) 5.42' distance between structures and 1.5% in lot coverage be denied on the basis that:

The Board finds that the standards outlined in Section 5.256(4) cannot be met due to the Applicant's personal desires and not to the shape or configuration of the property.

The Board further finds that this request is self-created due the Applicant's request for a larger garage to accommodate a large boat.

The Board finds that the proposed location will effect the adjacent property owner. There are alternatives available to provide the Applicant with a garage.

Ayes: Anderson, Withrow, Witthoeft, Horton and Miller
Nays: None
Motion Carried

Mr. Graham commended the Board on their deliberation. He pointed out that every record should indicate that Staff's proposed standards are only recommendations and can be changed, amended or altered. Staff pointed out that all the alternatives were discussed in depth with the Applicant. Chairman asked if it is necessary to read every item of the findings. Mr. Graham stated it is not, since it is part of the exhibits.

The Board agreed that once the ordinance sections have been cited, they can be referenced thereafter.

Mr. Graham pointed out that if the Board's standard was based on granting variances just because a petitioner wanted it, variances would be granted all the time. By giving the variances, the Board is changing the Zoning Ordinance without going through the public hearing process. Chairman Withrow pointed out that he likes these standard better than the past standards. However, it makes it more difficult to get a variance.

Mr. Anderson asked about the list of similar cases that used to be supplied in the staff report by Staff. Mr. Graham stated that does not apply anymore since the law has been changed. The facts of each case to determine if they support the standards. The intent of zoning is to bring everyone into compliance over time.

Mr. Anderson asked why the standards were changed. Mr. Graham stated that the zoning regulations are enacted by City Council. If
the public, or others want to change the regulations, they must go through the public hearing Planning Commission/City Council process.

The appropriate process is not to be giving out variances, which has the function equivalent of permit to violate the ordinance. Zoning Board need to be careful, since they are short circuiting the amendment process.

Mr. Anderson asked if the new standards are used across the State. Mr. Graham stated that his firm has developed these standards for many municipal clients, that have worked very well. These standards will be able to be defended in court, if necessary.

H) OLD BUSINESS

1. Case #03-02ZBA - Charest - 202 Alice - Withdrawn

Staff indicated that the gazebo has been moved into compliance.

2. Case #03-05ZBA - Terrill - 117 Eaton - Withdrawn

Staff explained that Judge Terrill has until August 1st to remove the pillars and fencing from the City right-of-way. A fence permit has been issued to allow for the construction of a fence/pillars that will be in compliance with the requirements of the ordinance.

I) OTHER COMMUNICATIONS

J) NEW BUSINESS

K) PUBLIC INPUT, NOT RELATED TO OTHER AGENDA ITEMS

L) ADJOURNMENT

The meeting was adjourned at 8:30 P.M.