CITY OF CHARLEVOIX

BOARD OF APPEALS


Minutes




September 19, 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


Present: Nuttle, Withrow, Anderson, Ostling and Horton

Absent: Cross and Hodgson


C) DESIGNATION OF ALTERNATES


Mr. Ostling and Mr. Horton were designated as alternates


D) APPROVAL OF MINUTES


The Minutes of June 20, 2001 were approved as submitted

The Minutes of August 15, 2001 were tabled to the next meeting.

E) APPROVAL OF AGENDA


The Agenda was approved as presented


F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST


None


G) PUBLIC HEARING


1. Case 01-2ZBA - Eveleigh - 208 E. Dixon


Mr. Eveleigh, Applicant presented his request to the Board. He stated that he was not aware that a zoning permit was required, since he was putting up an unattached deck around his house. The project started out to rebuild some existing porches. These areas were totally detached. There was a porch on the west side and on the rear. He presented photos of the side and rear of the house. He pointed out the existing basement access. One of the existing decks measured 4' x 6'. The other small deck was the same dimension.


Mr. Harsch pointed out that the mortgage survey shows the basement entrance. However, when the drawings were prepared by Staff the area to the immediate north was calculated as structure. After consulting with the surveyor, John Ferguson, it was determined that this area to the north was open space. Because of this determination, the calculations for additional open space cancels out any additional square footage allowed for the two existing decks.


It was pointed out that this additional information was presented to Staff on September 18, 2001.


Mr. Eveleigh stated that he was having a party and wished to build additional deck space. After consulting with other contractors, he was told that he did not need a permit if the decks were not attached. During a site visit to his neighbor, Staff saw the deck construction. Ms. Manore stated a zoning permit and building permit was needed for the deck. At that time, Mr. Eveleigh was advised to go to the Building Department to explain what he had done. He stated that he continued to work to make the deck safe. This deck does not interfere with any of the parking or easement.


A letter of support from Mr. & Mrs. Sheffer was presented to the Board.


Mr. Eveleigh pointed out that the only allowable building area

would be half the size of his house.


Mr. Nuttle discussed the two easements located on the Sheffer property. Mr. Eveleigh stated that the exclusive easement is for parcel "A" and not for "B" (as stated in the staff report).


 


The non-exclusive easement allows access to both parcels. Both easements are located on parcel "B".


Mr. Horton asked the condition of the existing decks. Mr. Eveleigh stated the decks were in very bad shape. They were told by their insurance company that they would have to repair them. He stated there is no other basement entrance and that he will have to add an entrance hatch in the deck.


Mr. Nuttle stated that if there is an exclusive easement for this property, perhaps it should be added to the lot size. He does not have to own this exclusive easement to use it.


Mr. Harsch stated that a conforming lot must contain 12,000 sq. ft of area in an R-1 zoning district.


Judy Clark, 207 E. Dixon, stated there is no visible change to her view of this property. She has no objection to this deck.


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


 

 


Chairman Withrow asked if it is Staff's position that this deck represents an overcrowding. Mr. Harsch stated that is staff's position.


Mr. Nuttle stated the Applicant bought a parcel that was split from the Sheffer property. This created two nonconforming lots, even though it separated two houses that existed on one lot.



Staff stated this split occurred about five (5) years after adoption of the zoning ordinance. This split was never approved by the City Planning Commission. There was a split recorded in 1984 with the County. There was no activity or approval given from the City at that time. Today there are regulations to deal with this.


Mrs. Clark stated they have lived in their house since 1965. She stated that her late husband was on the Zoning Board at that time. It was always their opinion that this lot split was done illegally.


Mr. Nuttle asked what type of rules are now in place for lot splits. Mr. Harsch explained that changes were made to the State Subdivision Control Ordinance, which is now called the Land Division Act. There are now certain approvals needed prior to the splitting of any lot. This would trigger an approval process by the City. If this split were presented to the Register of Deeds today, it would go to the County Equalization Department. The City of Charlevoix would then be contacted to determine if the conditions of the ordinance had been met.


It was pointed out that the Applicant entered into a land contract in 1988. In 1991, they purchased the house and obtained a mortgage.


Chairman Withrow pointed out that the lot split is not under consideration by this Board. Mr. Withrow asked why Staff indicated that this deck represents an overcrowding of the land.


Mr. Harsch stated that the Board had determined in a number of previous cases, that building to such an extent would have been overcrowding. Page 24 of the staff report lists the McKenna and Peterson cases which were denied based on overcrowding. One was a garage and one was an addition. Chairman Withrow stated that this case is slightly different since it is a deck and does not inhibit visibility and air flow.


Mr. Ostling stated that the calculations do not take into consideration that there is an easement running along the property for the use of the Applicant. Mr. Nuttle stated the easement changes the entire picture. Chairman Withrow stated that even with the easement figures, they would not be within an acceptable margin. It was pointed out that the easement cannot be built on.

Chairman Withrow pointed out that the actual setbacks and lot coverage have to be done using the actual property dimensions. Part of our consideration for a variance is what is being discussed. He reminded the Board of the variance granted in the Young case, and the condition that a 13' easement be granted.



Chairman Withrow cited the following cases were similar variances were granted:


BORDER=1 CELLSPACING=1> 86- 27 Hamilton 206 Michigan 16.75 % 6' 33.
15' 4800
sq.ft Acc.
bldg & steps 1984 Hayes 401 E.
Dixon 20% 12' 24' & 8" 6204
sq.ft Attach
garage

He pointed out that a variance of 20% in lot coverage was granted for the property located at 401 E. Dixon.


The Board determined, based on their discussion, that they did not have an issue as to whether this is contrary to the public interest. The adjacent resident and the resident across the street have no objections to this request. An elevated building has not been built. It should be recognized that the intent of the zoning ordinance is to allow people, on a case by case basis, to request variances.


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. Nuttle stated that the exclusive easement is part of parcel "A", even though it is on parcel "B". Chairman Withrow stated the written document shows the ownership and location of the easements.



The Board discussed the three special findings of fact.


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.

It was agreed that lot coverage variances have been granted for other R-1 parcels. The granting of these variances would only be applicable to the deck, and that no elevated structure could be built on top of this deck and that the deck could not be enclosed.

Mr. Harsch stated that if the Board is uncomfortable with the existing calculations, the case could be tabled to allow revised calculations. In addition, he suggested that Jim Young, City Attorney's interpretation be given regarding the inclusion of the exclusive easement in the lot coverage calculations.


Chairman Withrow stated that would not make a significant difference. He suggested that the easement should not be included and that it would not effect his thinking in this case. The Board agreed.

 

Based on the facts presented, the Board determined that the property in question is extremely nonconforming with regard to size, which was not created by the owners. Those parts of the deck which provide access to the residence are essential for access purposes. The neighboring land which is the subject of the exclusive easement can only be used by the applicant, therefore, should be considered part of the overall parcel. The Board determined that in instances where the spirit and intent of the Zoning Ordinance are not compromised by such variances that the property owner would not be denied a reasonable use of their property and thereby denied a substantial property right possessed by other properties in the same zoning district.


Motion by: Ostling Supported by Anderson


to grant the following variances for Case #01-19ZBA: Lot Coverage: 22.4%, Side (W) Yard 14', Side (E) Yard 10.17', Rear Yard 26.64' and Extension of Non-conforming Structure. These variances were granted on the basis that all the conditions for granting a variance have been met. The variance was granted on special finding #3, on the basis that other properties have been granted the same substantial property right (Hayes, 401 E. Dixon and Hamilton, 206 Michigan). With the following condition, it should not effect adjacent properties:


1. That no elevated structures will be built on or above the deck.


In addition, this variance is granted with consideration for the fact that there are adjacent easements which effectively results in less lot coverage and setback encroachments, even though they are not calculated in this application.


Ayes: Nuttle, Withrow, Anderson, Ostling and Horton

Nays: None

Motion Carried


H) OLD BUSINESS


The following Decisions & Orders were approved as presented


 

2. Decision & Order - Case #01-18ZBA - Powel

3. Decision & Order - Case #01-24ZBA - Terrill(King)

4. Decision & Order - Case #01-26ZBA - Supernaw

5. Decision & Order - Case #01-28ZBA - Young

6. Decision & Order - Case #01-29ZBA - Kirby/Hoffman


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 8:15 P.M.