October 15, 2003
Coast Guard Training Room

7:00 P.M.

A) CALL TO ORDER

The meeting was called to order by Acting Chairman Nuttle at 7:00 P.M.

B) ROLL CALL

Members Present: Nuttle, Anderson, Cross, Miller and Horton,
Members Excused: Withrow, Witthoeft

C) DESIGNATION OF ALTERNATES

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

D) APPROVAL OF MINUTES

The minutes of June 18 and August 20, 2003 were approved as submitted.

E) APPROVAL OF AGENDA

The Agenda was approved as presented

F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST

Not conflicts of interest were identified




G) PUBLIC HEARINGS

1. Case #03-25ZBA - 110 Clinton - Harbor Health Club

Mr. Nuttle introduced the case. He stated that the City approved
the site plan, but requested that the Applicant move his building back ten (10) feet from the front property to save a neighbor's tree. This will mean that the plan will be short by two (2) parking spaces.

Mrs. Cross asked the age of the tree. Mr. Voicin, stated the tree is about 70' in height and very old.

Mr. Bruce Mc Arthur, Resident, stated he was in favor of saving this tree and the maple at the other corner of the property.

Mr. Jess, Applicant stated he had no problem moving the building back the requested ten (10) feet.

Mr. Nuttle read the following draft of the findings of fact:

Note: The following findings are offered to assist the Board of appeals in their deliberations only, and are subject to change, modification and alteration by the Board.

SITUATION FINDINGS OF FACT (staff draft)

1. The Board finds that the property at 110 Clinton is zoned CBD and is owned by Episcopal Dioceses of Western Michigan

2. The Board finds that Exhibit C shows that the area of this vacant lot is 7,807 sq. ft.

3. The Board finds that the proposed structure would contain 4,171 sq.ft. of usable floor area (Exhibit C)

4. The Board finds that Section 5.92(24) of the zoning ordinance allows health clubs, fitness centers, including racquet courts, in the CBD.

5. The Board finds that Section 5.94 (1-5) of the zoning ordinance
does not require setbacks in the Central Business District.

6. The Board finds that Section 5.214 (h) of the zoning ordinance requires the following, in reference to parking: "In the Central Business District, one (1) for each three (3) pieces of mechanical exercise equipment plus one (1) for each three (3) persons that can be accommodated within aerobic exercise studios at maximum capacity.

7. Section 5.212(8) of the zoning ordinance states: "The new creation of commercial or accessory residential floor space or uses in the central business district shall require the provision for parking in a accord with this chapter; provided that the Planning Commission and the City Council may approve a development plan as required by Section 5.188, as amended, if the property owner pays on a one-time basis to the City of Charlevoix Central Business District Parking Improvement Fund, the sum of three thousand dollars ($3,000) adjusted on an annual basis in accord with the Consumer Price Index, based on the base year 1991 for each parking place which can not be provided on site. Such funds shall be used to benefit the provision of public parking in the central business district. Parking spaces thus provided for shall be unreserved and as generally available to the public. Payments into the parking fund shall be made prior
to the issuance of a land use permit for the proposed project by the zoning administrator."

8. The Board finds that the Applicant is required to furnish fifteen (15) parking spaces. The Applicant is proposing to pay into the parking fund for eight (8) spaces .(Exhibit C)

9. The Board finds that Section 5.188(2)(b-c) states: "Approval shall be based upon: (a) Compliance with Chapter requirements, (b) Recognition by developer of all proposed impacts of the project, (c) Provisions made by the developer to deal with or minimize negative project impacts, and (d) The project's ability to be incorporated into the community."

10. The Board finds that at the Planning Commission meeting of September 8, 2003 and the City Council meeting of September 15, 2003, it was determined that the proposed plan did not meet the

standards set forth in Section 5.188(2)(b-c)of the zoning ordinance, based on the negative impacts to the adjacent property, i.e. The loss of the 24" conifer tree.

11. The Board finds that the revised approved plan (Exhibit C) shows the building set back from the Clinton Street property
line by ten (10) feet, reducing the parking spaces from seven (7) to five (5).



SECTION 5.256(4) FINDINGS OF FACT (staff report)

The Board makes the following findings of fact as required by Section 5.256(4) of the zoning ordinance for each of the following standards listed in that section:





(4) VARIANCE GENERAL STANDARDS

(a) 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 this parcel is zoned CBD, which does not require setbacks.

2. The Board finds that the lot is not irregular in shape. The parcel measures approximately 79' x 66'. There are no wetlands or steep topography on the lot.

3. The Board finds that the requested variance is not due to the applicant's personal or economic situation, but due to the determination of the Planning Commission and City Council, the original location of the structure would have a negative impact on the adjacent property and the CBD, due to the likely loss of the 24" conifer on the adjacent property.

4. The Board finds that the Planning Commission's recommendation would eliminate two (2) of the proposed Seven (7) parking spaces.

5. Therefore, the Board finds that this standard 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 was in violation of zoning regulations in effect at the time the action was taken (self-created).

1. There is no record that the establishment of this parcel was in violation of the zoning ordinance.

2. The Board finds that this standard is met.

(c) 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.

1. The Board finds that this parcel is zoned CBD, and that the Applicant can build to the property line, with no required setbacks.

2. The Board finds that by moving the building ten (10) feet to the south, the adverse impact to the adjacent property owner's 24" conifer would be minimized, and the requirements of Section 5.188(2)(c-d) of the zoning ordinance would be met.

3. Any movement of the building to the south would eliminate a minimum of two (2) parking spaces, which is the requested variance.

4. The Board finds that this standard is met.

SECTION 5.256(5)(b)

The Board makes the following findings of fact as required by Section 5.256(5)(b) of the zoning ordinance for each of the following standards listed in that section:

(5) SPECIAL FINDINGS - SECTION 5.256(5)(A) (STAFF DRAFT)

(a) 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 Section 5.92(24) of the

zoning ordinance allows health clubs, fitness Centers, including racquet courts, in the CBD.

2. The Board finds that the Applicant can build the proposed structure to the property lines and accommodate the parking spaces, if the impact to the adjacent tree was not an issue. Therefore, it would be unnecessarily burdensome to require the payment for two additional parking spaces.

3. The Board finds that the additional expense of paying for two (2) additional parking spaces, into the parking fund, would be unnecessarily burdensome to the Applicant.

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

The Board agreed with the standards as presented.

Staff explained that the Applicant will be paying into the parking fund for eight (8) parking spaces.

Mr. Nuttle pointed out that the Applicant can build to the edge of the property line, but has agreed to move the building back.




Mr. Mc Arthur asked if the Applicant could move the building back another ten (10) feet to save the 3' maple tree. Mr. Nuttle suggested that the maple tree may be saved and that the drawing is not quite accurate.

A resident pointed out that parking is such an issue downtown and this development will add to it.

Mr. Anderson stated the parking fund was set up to provide more parking downtown. Mr. Harsch stated that the parking fund fee is approximately $4,000.00 per space.

Mr. Jess stated that he currently does not have any designated parking spaces at the Health Club. It was pointed out that this site will accommodate five (5) new spaces that did not exist. It was also suggested that the building could be smaller.

Mr. Bennett, Planning Commissioner, stated the development plan met all the standards of the ordinance. The Commission requested that the Applicant move the building back by ten (10) feet and he complied. This was not a requirement of the approval process.

Mrs. Miller stated that the parking situation needs to be reviewed. Mr. Harsch explained that the parking fund money is managed by the City Treasurer. All the funds are managed through the budgeting process.
Three parking lots have been added in the CBD since this fund has been instituted.

Motion by Cross Supported by: Anderson

to grant a variance for Case #03-25ZBA for two(2) parking spaces. This variance is granted on the basis that all the standards of the ordinance have been met.

Ayes: Cross, Horton, Anderson, Miller and Nuttle
Nays: None
Motion carried

Motion by Cross Supported by Anderson

that the Board recommends the variance fee of $350.00 be refunded to the Applicant, due to the fact that the City requested that the building be moved back by ten (10) feet to save the neighbor's tree.

Ayes: Horton, Anderson, Miller, Nuttle and Cross
Nays: None
Motion Carried




2. Case #03-27ZBA - 101 Auld -Roby- Apple Tree Building and
withdraw of Case #03-18ZBA - Roby

Staff stated that Case #03-18ZBA has been tabled from a prior meeting. A letter has been received from Mr. Dan Barron, for the Applicant, which requests that Case #03-18ZBA be withdrawn.

Motion by: Anderson Supported by: Miller

to withdraw Case #03-18ZBA, at the request of the Applicant.

Ayes: Anderson, Miller, Nuttle, Cross and Horton
Nays: None
Motion carried

Mr. Nuttle asked the status of the current case. Staff stated that the following variances were originally notified:

Previous Variance Request: (As published on October 1, 2003)
Section 5.33(1)- Lot Coverage variance of 16.55%
Section 5.33(3)- Side Yard variances of 14.74' (n) & 12.58' (s)
Section 5.33(4)- Rear Yard variance of 15.25'
Section 5.34 - Floor Area - Variance of approx. 29.61 sq.ft.

Based on new developments, the Applicant is requesting the following reduction and modification to his request:

Section 5.33(3) - Side Yard variance of 3.75' (N) and 3' (S)
Section 5.33(4) - Rear Yard variance of 15'
Section 5.34 - Floor Area - Variance of approx. 513.76 sq.ft.
Section 5.36 - Width variance of 7.2'

Mr. Dan Barron, Attorney for the Applicant, Mr. Steve Roby, Applicant and Ms. Sally Koerber, Contractor were present.

Mr. Barron stated this request was originally to allow for the entire "Apple Tree" structure to be relocated on the southern parcel owned by Mr. & Mrs. Roby. Based on the condition of the structure, it was decided that only a portion of the building could be moved. This proposal was discussed with a group of neighbors. At that time, this new proposal seemed to be more acceptable to the neighbors.

Further discussions and investigation with the developers of the downtown site indicated that moving the westerly 13 feet would undermine the structural integrity of the building. For this reason, the Applicant is now proposing to build a new structure, using the existing materials from the "Apple Tree" facade. The Robys plan to replicate the original structure.


Mr. Harsch explained that there will be no difference in the footprint.
Staff indicated that the correspondence received by the City before the current proposal and were based on the original plan.

Mr. Barron stated that he endorses the Staff's findings of fact.
He pointed out that this proposal meets the lot coverage requirements for an R-1 lot. This is the right sized structure for this lot. The lot is so small that nothing could be built without variances. This is legal lot of record. These are the minimum amount of variances necessary to afford the Applicant relief. The side yard setbacks have also been reduced significantly. There are other nonconforming lots in the neighborhood that have received variances in the past. He pointed out that the buildable envelope on this parcel contains only 112 sq. ft. which would not even meet the building department requirements for a dwelling.

Mrs. Cross pointed out that the newspaper stated this structure would be an "art gallery" and that it would create traffic impacts to the area.

Mr. Roby stated that there was a misunderstanding with the newspaper article and that this structure will never be an art gallery. Mr. Barron suggested that the traffic in the alley could be controlled through one-way signage, caution or children at play.

The validity of increased traffic was questioned since this will be a single family residence. Construction traffic was also mentioned as a concern.

Connie Ford asked what will be inside the building. Mr. Roby stated he is planning on installing a small kitchen, a fireplace and an open living area. This lot will be landscaped to blend with the northern parcel. Mr. Roby stated he is required to build only a single family residence on this lot and that the existing garage will be removed.

Mr. Nuttle reviewed the dimensions of the lot as listed above. This is legal nonconforming lot. The Applicant has the right to build one single family residence. He also reviewed the revised variance requests as listed above.

Mr. Paul Belding, 105 Petoskey, asked what the justification is for establishing the current setback requirements. Mr. Nuttle suggested that setbacks were established for open space, landscaping and space between structures.

Mr. Anderson pointed out that there an many odd shaped lots in the City and variance requests come up all the time.

Mr. Bruce Herbert, 406 Michigan Avenue, stated he was totally against the original request to move the entire structure. However, this proposal is reasonable and not intrusive.

Ms. Bridget Olkowski, 107 Petoskey, expressed concern regarding the safety of her children and parking on this parcel. She asked if Mr. Roby is allowed to sell this parcel in the future. Mr. Nuttle stated
Mr. Roby can sell this property at any time, regardless of what exists on the north parcel.

Mr. Roby stated he has no intention to sell this property. He stated that the existing house is called the "Cozy Bear" and the new structure will be called the "Cozy Cub".

Mr. Nuttle pointed out that nothing can be added to this parcel without additional variances.

Mrs. Bennett, 109 Petoskey, stated that this plan is much more pleasing to them than the original plan. He has a right to build something there. She asked if the trees between their properties will be removed.
Mr. Roby stated that by adding materials that are common to Charlevoix that will blend into the neighborhood. He stated that those trees will not be removed. He suggested that he will be planting additional hardwoods and perennials.

Mr. Steve Bennett, 109 Petoskey, asked if zoning requires that the garage be removed prior to construction of the proposed building. If not, this issue should be addressed for the record. We need legal documentation from the ZBA that the garage will be removed.

Mr. Roby pointed out that a resident has requested that the garage be moved onto their property.

A resident expressed concern with the traffic in the alley. Staff stated the residents need to contact Chief Halverson.

It was pointed out that there are two bus stops in the area of the alley. Mr. Roby introduced his contractor, Ms. Sally Koerber, stating that she will be the on-site contact person. The resident stated that Ms. Koerber has been excellent to work with. Snow removal was also mentioned as being a potential problem.

Mr. Nuttle reminded the residents that nothing additional could be built on this lot without a variance.

Mr. Harsch stated that in 1998 Case#98-13ZBA requested a variance to construct guest quarters on this lot. It was denied on the basis that it would be contrary to the general public interest and general intent and purpose of the ordinance. This is no longer a standard set forth in the ordinance.

In addition, the information submitted as "staff findings" are only a suggestion and subject to change, modification and alteration by the Board. The City Attorney has indicated that if the Board has any unanswered questions regarding the findings and standards, he would recommend that the Board table the case for clarification.

The fact that historic parts of this building will be used is not relative to the findings and standards.

Mr. Nuttle and the Board reviewed the findings as follows:

Note: The following findings are offered to assist the Board of Appeals in their deliberations only, and are subject to change, modification and alteration by the Board.

SITUATION FINDINGS OF FACT: (Staff Draft)

1. The Board finds that the property is located at 101 Auld. The property is zoned R-1 Single Family Residential and is owned by Cozy Bear, L.L.C. (Steven B. & Annemarie L. Roby) of Farmington Hills, Michigan

2. The Board finds that Section 5.226 of the zoning ordinance states: "Any lot existing and of record on the effective date of this ordinance may be used for any permitted principal
and accessory uses specified for the district in which

such lot is located whether or not such lot complies with the lot area and width requirements of this ordinance, provided that all other dimensional requirements of this ordinance are complied with."

3. The Board finds that Section 5.32(1) of the zoning ordinance permits: "One (1) single-family dwelling on each lot."

4. Therefore, the Board finds that a single family residence

can be built on this lot."

5. The Board finds that this legal lot of record measures approximately 60' x 36.27', 2,170.39 sq.ft. in area.

6. The Board finds that there is an existing nonconforming garage on the parcel which is encroaching into the alley right-of-way by .26' and the rear yard property line by .34'.

7. The Board finds that the Applicant is requesting the above revised variances to allow for the placement of a portion of the "Apple Tree" building on this parcel.

8. The Board finds that the "Apple Tree" structure will measure approximately 33.30' x 12.80', not including eaves. The structure will contain approximately 426.24 sq. ft. of area.

9. Section 5.33(1) Lot Area of the zoning ordinance states:

"The minimum lot area and width in this zone shall be twelve thousand (12,000) square feet and one hundred (100) feet respectively. The building and/or structures shall not use more than thirty percent (30%) of the usable lot area."

10. Section 5.33(3) Side Yard of the zoning ordinance states:

" There shall be a side yard of not less than fifteen (15) feet on each side of any dwelling or accessory building, excepting the street side of any corner lot, which must abide by the regulations of this Chapter for front yard area."

11. Section 5.33(4) Rear Yard of the zoning ordinance states: "There shall be a rear yard of not less than thirty-five (35)feet.

12. Section 5.34 Floor Area of the zoning ordinance states: "Each

single-family dwelling shall have a minimum of one thousand forty (1,040) square feet of usable floor area, exclusive of porches, garages and basements for a one-story dwelling; or one thousand six hundred (1,600) square feet if more than one (1) story."

13. The Board finds that the 2000 Michigan Residential Code requires the following: R304.1: "Every dwelling unit shall have at least one habitable room that shall have not less than 120 sq. ft. of gross floor area."

14. The Board finds that the 2000 Michigan Residential Code requires the following: R304.2: "Every kitchen shall have not less that 50 sq. ft. of gross floor area. While bathroom facilities are not, by definition, considered habitable space, they are required as follows: R306.1 and R-306.2 require that every dwelling unit have toilet facilities and a kitchen. (Exhibit E)

15. The Board finds that Section 5.214(1)(a) of the zoning ordinance requires: "Facilities for the storage or parking of motor vehicles for the use of the occupants of dwellings shall be provided and maintained on the premises occupies by such dwelling on the basis of two (2) parking spaces for each dwelling unit.

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:



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 measures approximately 60' x 36.27', or 2,170.39 sq.ft. in area.

2. The Board finds that Section 5.33(1), as cited above, requires that a lot in the R-1 zoning district contain 12,000 sq. ft. of area, 100' at the building line and shall not have buildings and/or structures exceeding 30% of the usable lot.

3. Therefore, the Board finds that there are physical conditions or unique circumstances relative to the property that would preclude the Applicant from placing a structure anywhere on the property that would be in compliance with the setback requirements of the zoning ordinance.

4. 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 action to create this parcel from Lot 5 of the Fox and Eaton's plat occurred


prior to the establishment of the current ordinance. There is no record that the establishment of this parcel was in violation of a zoning ordinance, at that time of it's establishment.

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

(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 revised request represents a substantial reduction in the side yard setbacks and the elimination of the lot coverage variance request.

2. The Board finds that the proposed structure measures 33.30' x 12.80', 426.24 sq.ft. which meets the Building Code minimum for habitable living space (as cited above) and grants substantial relief to the Applicant to allow a residence to be built on this nonconforming parcel.

3. Furthermore, the Board finds that by reducing the requested side yard setbacks and eliminating the lot coverage variance, the Applicant has minimized the adverse impact to adjacent property owners and the general neighborhood.

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


SECTION 5.256(5)(A) FINDINGS OF FACT (Staff Draft)

(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 this lot measures approximately


59.84' x 36.27', which does not meet the 12,000 sq.ft. required under Section 5.33(1), as cited above.

2. The Board finds that Section 5.33(3), as cited above requires 15' side yard setbacks.

3. The Board finds that Section 5.33(4), as cited above requires a 35' rear yard setback.

4. Therefore, the Board finds that this parcel does not meet the dimensional requirements of the zoning ordinance, due to the physical limitations of the parcel.

5. The Board finds that Section 5.32(1), as cited above, allows one single family dwelling to be built on each lot in the R-1 zoning district.

6. The Board finds that the allowable building envelope on this lot measures 18'.2" x 6'.2" or 112.84 sq.ft.

7. Therefore, the Board finds that no structure could be built on this parcel that would meet the minimum requirements of the zoning ordinance and Building Codes, as cited above.

8. The Board finds that due to the dimensions and

area regulations for this R-1 lot (as cited above) will not allow the Applicant to use his property for it's permitted use which constitutes an unnecessary burden to the Applicant.

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

The Board agreed with the above listed findings and that all the standards of the ordinance have been met.

Motion by Anderson Supported by Cross

to grant the following variances for Case #03-27ZBA for the construction of a single family residence, as shown on the submitted plans:

Section 5.33(3) - Side Yard variance of 3.75' (N) and 3' (S)
Section 5.33(4) - Rear Yard variance of 15'
Section 5.34 - Floor Area - Variance of approx. 513.76 sq.ft.
Section 5.36 - Width variance of 7.2'

These variances are granted on the basis that all the standards of the ordinance have been met and conditioned upon the fact that the existing garage will be removed prior to occupancy of the structure.

Ayes: Horton, Anderson, Miller, Nuttle and Cross
Nays: None
Motion carried


H) OLD BUSINESS

1. Decision and Order for Case #03-22ZBA - 215 Park Ave.- Nelson

The above submitted Decision & Order for Case #03-22ZBA was approved as submitted.


I)OTHER COMMUNICATIONS

None

J)NEW BUSINESS

None

K)PUBLIC INPUT, NOT RELATED TO OTHER AGENDA ITEMS

L)ADJOURNMENT

The meeting was adjourned at 9:30 P.M.