CITY OF CHARLEVOIX

BOARD OF APPEALS


Minutes




August 15, 2001
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


Roll call was taken. All members were present


C) DESIGNATION OF ALTERNATES


Mr. Nuttle was designated as alternate and Mr. Ostling left the meeting.


D) APPROVAL OF MINUTES


The Minutes of June 20, 2001 were tabled to the next scheduled meeting since page #2 was missing from the staff packet.

E) APPROVAL OF AGENDA


The Agenda was approved as presented








F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST


Two members of the Board indicated that Mr. Supernaw was their accountant. It was determined that no conflict exists.


G) PUBLIC HEARING


1. Case 01-26ZBA - Supernaw - 808 Bridge


Ms. Jodi Lyons was present to discuss the Applicant's case. She indicated that Mr. Supernaw would like to add office space to the first floor and additional space to the second story apartment. All the parking requirements of the ordinance have been met.


Mr. Withrow asked if adequate driving space and parking were retained. Mr. Withrow pointed out that the removal of the existing garage would be an asset to the area. Ms. Lyons and staff stated it is adequate.


Mr. Nuttle asked what the additional square footage would be. Staff indicated the addition would add 410 sq.ft. of area. There are no lot coverage requirements in the C-1 district.


No input was received from the public regarding this case.


Mr. Harsch indicated that the adjacent paint store is only about 3- 4' from the sidewalk. In addition, the business across the street (805 Bridge Street) is closer to the sidewalk.


No comments were received from the general public.


The Board reviewed the general and special findings.


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


 


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


 


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.



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 Anderson Supported by Cross


to grant a fourteen (14') foot front yard setback for Case #01- 26ZBA to allow the Applicant additional office and residential space in the existing structure. This variance is granted on the basis that such variation is necessary for the preservation of a substantial property right possessed by other properties within the same zoning district.


The following conditions are to be met:


1. That the existing garage be removed


2. That the site plan be followed, to include the five (5') foot buffer of cedar plantings, as required by development plan approval.


Ayes: Nuttle, Hodgson, Withrow, Cross and Anderson

Nays: None

Motion Carried



ITEM #2 CASE #01-28ZBA - YOUNG -405 PROSPECT - VARIANCE


Mr. Young, Applicant presented his case. He stated that he bought the property for his elderly parents. This request for a carport would make it safer for them during the winter months.


He pointed out that the garage to the rear is too far and dangerous for them to walk. He presented the Board with photos of the large trees on the property. He stated it is very difficult to manoeuver into the existing garage.


He pointed out that there is currently 46' between his house and the house at 405 Prospect.


Mr. Nuttle asked how the carport would be accessed. Mr. Young stated they would access the carport from Prospect. Mr. Young indicated that he also owns the property at 411 Prospect.


Staff indicated that no front yard variance is needed since the adjacent properties are closer than the Applicant's to the front property line.


Mr. Harsch stated the property at 411 Prospect contains two (2) driveways. Staff suggested that Mr. Young could establish an easement for side yard purposes with regard to the property located at 405 Prospect. He suggested that the City may not issue a curb cut permit since there is an existing entrance to this property off the alley. There are two driveways on the 411 Prospect property.


Mr. Nuttle stated the Applicant has the right to own each property separately. Mr. Harsch stated that while that is correct, the Applicant does not currently have the right to build the proposed carport in the side yard setback, unless a variance is granted. Mr. Harsch stated the Applicant could create a revocable easement.


Mr. Young stated that he considered a lot split and combination, but that would create the property at 411 Prospect nonconforming, which is not allowed by ordinance.


Mr. Anderson suggested the establishment of a permanent easement.

Mr. Nuttle agreed.


Mr. Withrow asked if a permanent easement was established, would it effect the side yard setbacks. Mr. Harsch stated nothing could be built in the easement, even though the property would retain the existing lot width of 100'.


Staff indicated that there was one letter of support submitted by Mary Feint. There was no other public input regarding this case.


Mr. Young stated he has already talked to Mr. Martin, of the Street Department regarding the curb cut and is awaiting a determination on the curb cut.


The Board discussed whether the motion should be based on the curb cut decision. Mr. Withrow stated that is not a concern of this board.


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


 


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


 


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.


 


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 Hodgson, Supported by Cross


to grant a 13' side yard setback variance for Case #01-29ZBA to build a carport. This variance is granted on the basis that extraordinary circumstances exist since the Applicant owns both adjoining lots, that 405 Prospect is a small lot and that the Applicant will provide a permanent easement of 13 feet on the property located at 411 Prospect (details to be worked out with Staff).


Ayes: Hodgson, Withrow, Cross, Anderson and Nuttle

Nays: None

Motion Carried




ITEM #3 CASE #01-29ZBA - KIRBY/HOFFMAN - 103 BELVEDERE


Mr. Hoffman and Mr. Kirby, Applicants were present to explain their request.


Mr. Hoffman asked to see the two letters of correspondence received by Staff regarding this case. The one fax and one dictated phone response were in opposition to granting this variance.


Mr. Hoffman stated that many variances have been granted along Belvedere. He stated that this addition would be of a lower height than the Wharfside building. They would not be blocking anyone's view of Round Lake. The only way to use this building and conform is to build up.


Mr. Withrow asked if this variance is granted, what the impact to the adjacent property would be. Mr. Harsch stated, if granted, it would be approximately 3-4 feet lower. The adjacent property is zoned MC - Marine Commercial. The Applicant's property is zoned PO - Professional Office. The allowable height for MC is 36' and 26' for PO.


The Board and the Applicant suggested that this property has a multiple zoning of MC and PO. Mr. Harsch stated that all the parcels to the east are zoned MC. Mrs. Cross stated a portion of this parcel has been zoned MC for years.


Mr. Harsch pointed out the height requirement for PO is 26' and structures in the MC zone that are used as residential also require a height of 26'.


Mr. Hoffman was not clear as to the zoning of this parcel.


Mr. Nuttle asked why the applicant is requesting this variance. Mr. Hoffman stated he would like the added space for a retirement apartment. Mrs. Cross stated that the existing structure is already two (2) stories.


Mr. Harsch reviewed the "Existing Roof Elevations" provided by Ferguson and Chamberlain. Mr. Withrow pointed out that the existing structure currently exceeds the allowable building height by 6'4" measured from the lowest finished grade. Mr. Withrow stated that the roof shown on drawing "AA" is the highest roof point and the lowest point shown on "BB" is the lowest finished grade. The proposed new roof height would span the entire building.


 

Mr. Nuttle asked if there are any other height variances approved in the PO district. Staff indicated that while there have been height variances granted, they have been in different zoning districts.


Mr. Michael Corcoran, was present for Mr. Witthoeft, property owner of 102 Belvedere and Mr. & Mrs. Chatfield of 602 Bridge Street. Mr. Corcoran stated that this request should be denied since this addition would eliminate the Witthoeft's view of the harbor area, the park and much of Round Lake. This proposal goes against the Master Plan for the City. This is nonconforming use on all four sides of the building. This building is currently at the lot line. He suggested that the existing building is also nonconforming in height. He pointed out that this site may not comply with the off- street parking requirements. With two new residential structures, additional off-street parking would be required.


Mr. Corcoran addressed general findings of fact #1. It states that this new construction will not create a greater density than the Wharf condominiums. He stated that the Wharf is a different zoning district than this site. He stated that 20 years ago, there was a law suit involving the fact that the Ward Brothers wished to add to their building. They were approved and then sued by Mr. Sodenberg. The resolution of that lawsuit was that the pitch of the Ward Brother's roof would be lessened. Each party payed for half of the roof cost to preserve the view for Mr. Hoffman. With all due respect, Mr. Hoffman already has a view.


Mr. Corcoran cites the Master Plan II, page 62 addresses the south side of Round Lake. "The South Round Lake segment addresses the potential for new land uses along both the south and north sides of Belvedere Avenue." "...An important element of the schematic site plan is the preservation of view corridors to the maximum extent that is possible." "... Allowable development on the north side of Belvedere Avenue must be sensitive to preserving the view of residences above the hill on Hurlbut Avenue."


Mr. Corcoran stated that from his observation, Mr. Witthoeft's view will be effected and it will economically impact his property. He cited the Master Plan and the Waterfront Management Plan #12 map

talks about what should be for this little corridor. "Encourage

development of high value residential uses as lower value uses are discontinued. Discourage expansion or improvement to marginal or unrelated waterfront uses." The Master Plan echos the fact that we should discourage the expansion of this use, which is not necessarily the highest use.



He continued with the Master Plan, II p.3... "Waterfront Management Goal. The City of Charlevoix's waterfront area is the greatest economic environmental resource. Maximizing the economic and the environmental aspects of this resource can be a point of conflict.

It is therefore essential that a balance be struck between achieving the economic potentials of this resource without destroying the environmental relationships of the waterfront area."


He stated that the Findings of Fact suggests that this is more like a CBD structure. It also suggests that we look to the property to the east. He pointed out that the Board has wanted to eliminate structures along Bridge Street to encourage a view. This is the first structure on Belvedere past the park. He suggests that we should at least keep the existing structure in place.


This is a unique situation in that there are two (2) lots with one structure which is owned by two different people. If approved there will be two residential structures, which is allowed in the PO district for R-1. This would then be a multi-family dwelling.

This section of PO is unique and isolated.


He addressed the Special Findings for practical difficulties. The physical characteristics of this building violates the zoning ordinance in all dimensions. He disagreed with the view issue, stating that they already have a view of Round Lake. Economic benefit to the owner is not a valid reason to grant a variance.

This property is not CBD, but is zoned PO. The condos to the east existed when Mr. Witthoeft expanded his house and it does not effect his view, this proposal would effect that view.


Mr. Corcoran stated this proposal will have an economic impact on the Witthoeft's property as well as the other property owners in the area. He disagreed that there is no public objection to this proposal. He indicated that at the City Council meeting, there were several residents that expressed concern with blocking the view.


He addressed item #3 of the Special Findings. He stated that it is not fair to compare findings from a PO district against a different district. He read the definition of a practical difficulty:


"Practical difficulty: A situation whereby a property owner can not establish a "minimum practical" legal use of a legal lot or parcel, meeting all of the dimensional standards of the zoning district within which the lot is located. Situations occurring due to the owner's desire to establish a use greater than the "minimum practical" standard or to enhance economic gain greater than associated with a "minimum practical" standard or created by an owner subsequent to the adoption date of this chapter is not a practical difficulty. "



It is his view that the Applicant is trying to enhance their economic gain by adding this addition. They are already using the building for a residence and for professional office. If this were a vacant parcel, would the Zoning Board of Appeals grant 5-6 variances. They are adding to the existing nonconformance. They already have use of the property. We are requesting that the Board deny this request.


Mr. Steele, #20 Wharf Condos, reminded the Board that this matter came before City Council for rezoning. Several of the Wharf owners stated that this property is not suited for commercial (C-1) use, due to late night business hours and parking issues. City Council tabled this matter. The hope was to come before the ZBA with a request for a height variance instead of a rezoning. It is more preferable to be PO since it is adjacent to a residential structure. He pointed out that the Witthoeft and Chatfield properties are for sale. He expressed support for this request.


Mr. Kirby, Applicant stated his plan is to move into this apartment from Eastport. The current apartment for his mother-in-law is too small for her needs. He would also contemplate adding a personal office for himself on the first floor. He also indicated that he would like to upgrade the exterior of the building. He suggested that part of this parcel is zoned Marine Commercial. The Wards sold off our portion of the property. At one time there were commercial businesses on this site.


Mr. Ward, for Ward Brothers, when he built his building, he could not get a variance. He is opposed to any change at all.


Mr. Corcoran addressed the policy of eliminating nonconforming uses. The Norton Shores case was a landmark decision where the court said that one of the goals of zoning is the eventual elimination of nonconforming uses. The policy against expansion of nonconforming uses in zoning regulations should be strictly construed with respect to expansion. The Ordinance talks about expansion of nonconforming uses. If a building burns down and was not used for twelve (12) months, you would not get to rebuild. Zoning is trying to eliminate these nonconformancies even though there is a right to expand. They do not fit all the criteria for expansion.


Mr. Hoffman stated this request has nothing to do with nonconforming issues. We are only asking to build up so we can use this as residential. These are two separate residences. We are asking for the best use of this property. There will be some slight effect to the Witthoeft's property. They are the only ones objecting. The residents of the Wharf's are in favor of this. We are not stopping their view. We are not as tall as the Wharf. There have been variances granted along Belvedere for years and we are only asking for what was granted to them. Other than the Wards and Witthoefts, there were no other objections at the City Council meeting.


Mr. Hufford, 114 Belvedere, stated that to his knowledge, no height variances have ever been granted on the north side of Belvedere. If granted, you would be taking a nonconforming use and making it more nonconforming. By giving Mr. Hoffman a view of Round Lake, you would be taking that view away from others. Zoning is not there to change what exists, but what we do in the future. He stated that if this continues, there will be a solid wall of development around Round Lake. If we do not follow our zoning, why bother to have it.

The zoning is not the issue; a variance will have to be granted if they build beyond the 26'. There is no practical difficulty or unnecessary hardship. Making improvements to increase the value of the property is not a reason to grant a variance.


Mr. Corcoran stated there are a number of objections from area residents. The argument that other variances have been granted is relevant if they were all in the same zoning district. Those variances that were granted are not in the same zoning district and are not relevant to this case. He pointed out that the two houses that were for sale have been removed from the market.


Mrs. Cross stated that when she was on the Planning Commission the residents on the hill reviewed the ordinance and asked how high structures could go. The Planning Commission established the height at 26', and that is what the residents were comfortable with.


Mr. Hoffman stated that the view issue was never a factor for him. He is looking for a better use of this building so he would have a place to live once he retired. Mr. Kirby is asking to do the same.


Mr. Withrow asked if view is not an issue, could Mr. Hoffman finish off a lower level for residential use. Mr. Hoffman stated that he could, but that the best use of that building would be to add another level on top. Mr. Withrow pointed out that would be an expanded use of the building.


Mr. Kirby stated they could make this building more attractive, with a better use of the property. He does not plan on selling, but intends to make it a residence with a possible office on the first floor.



Mr. Hufford, stated we should be looking at what impact this property will have on surrounding properties. If you grant this variance, you will be taking substantial property values away from several properties on the north side of Hurlbut.


Mr. Harsch pointed out that Staff did not receive an accurate drawing of the footprint and property lines. Staff's auto-cad drawings indicate that the building overlaps on the west. Mrs. Cross suggested that the case should have been postponed until that information was available. Mr. Harsch pointed out that the requested height variance did not depend on the footprint of the ordinance.


Mr. Anderson asked if granting this variance would set a precedent. Mr. Harsch stated that it would not, since the Board's findings must be specific to this property and the circumstances that exist here.


Mrs. Cross stated that when Mr. Witthoeft and the other residents on the hill where buying their homes, they checked to see what the height requirements are. Mr. Corcoran stated that under the law, there is no right to a view, they are taken away all the time. Mr. Withrow stated that may be correct on a conforming structure. On a nonconforming structure, that is the question before us.


Mr. Harsch stated that the City Attorney has requested that when the Zoning Board has legal questions, a case should be tabled to a time when he can be present to answer those questions.


Mr. Withrow suggested that the Board first address the findings.

The Board discussed the findings and agreed that this structure already has a number of nonconformancies. They agreed that, if granted, this variance would add to the nonconformance. The Master Plan outlines why this parcel has it's current zoning, thus making it difficult to meet the requirements of general finding #1.



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


 


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


 



Mr. Hodgson suggested that a motion to deny, should be based on the items where there is no legal question. Mr. Withrow stated that the Board recognizes that general conditions #2 and #5 could present additional problems and that they would need additional legal interpretation.

 







Motion by Hodgson Supported by Cross


to deny the requested height variance of 10'8" for Case #01-29ZBA based on the fact that general findings #1 and #4 cannot be met.


Ayes: Withrow, Cross, Anderson, Nuttle and Hodgson

Nays: None

Motion Carried




H) OLD BUSINESS


None


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 9:00 P.M.