October 16, 2002
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, Cross, Anderson and Horton
Members Excused: Witthoef, Nuttle and Ostling
Staff Present: Harsch and Manore
C) DESIGNATION OF ALTERNATES
Mr. Horton was designated as the alternate member.
D) APPROVAL OF MINUTES
The Minutes of September 18, 2002 were approved as corrected,
adding the words "on the" to the motion by Horton and
supported by Cross.
E) APPROVAL OF AGENDA
The Agenda was approved as presented.
F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST
June Cross indicated that she would abstain from voting on Case
#02-21ZBA since Kellie Sutherland is her daughter.
G) PUBLIC HEARINGS
ITEM #1 PUBLIC HEARING FOR CASE #02-20ZBA- TERRILL - 117 EATON
Ms. Manore indicated that Judge Terrill is in intensive care and
has designated Ms. King as his representative.
Chairman Withrow stated that the Zoning Board of Appeals has had
a history of denying requests like this. Mr. Withrow stated the
Board would be willing to table this item until the Applicant
can appear before the Board.
Ms. Karen King and Mr. John Hess were present as representatives
for the Applicant. Ms. King stated she is familiar with this property
and is ready to represent the Applicant.
Mr. Withrow asked Ms. King if the Applicant wished to table this
case due to his hospitalization. Ms. King stated he did not.
Ms. King stated the main reason for the fence is for security
of the property. The fence will prevent unauthorized intrusion
and provide aesthetic value to the property. The fence is proposed
on the side of the home where there is no easy view from the home
to the side of the property entrance.
There have been recent incidents of unauthorized people on the
property. There have been things taken from the property and from
the home. Judge Terrill is planning to retire to this property
in 2004. He has concerns about security because of his office.
In the past year, he has had a stalker, who has been convicted.
This person has knowledge of this home and has relatives in this
area.
He is asking for a height variance. She pointed out that the original
property had a street on the east side of the property that was
abandoned by the City. The topography facing Eaton Street is such
that the fence would not detract from the neighborhood or cause
a problem.
Mr. Withrow asked if it is Judge Terrill's intent to fence the
entire property. Ms. King stated that most of the property is
already fenced. This is the most vulnerable part of the property.
Mrs. Cross asked when the rest of the fence was installed. Ms.
King stated that there is a chain linked fence between the Belvedere
Club and the Applicant's property which has been there for many
years. It is 5-6' in height.
The Chair asked for public input.
Mr. Hess, stated there is a real and present danger to Judge Terrill
based on the fact that he handles some large cases which involve
people who would, from time to time, get to him. He stated that
a 3' to 4' fence would not be a deterrent, while a 5' or 6' fence
would be more of a deterrent. This fence would not detract from
the neighborhood, due to the nature of the fence. It would add
to the neighborhood based on the design of the fence. Security
is one of the bigger reasons for this fence. He also reminded
the Board of abandoned street. It was not the Applicant's fault
that the street was abandoned.
Mr. Harsch stated that is immaterial because no matter what the
frontage is even with a through lot, the street frontage is handled
as front yards.
Mr. Withrow stated that if there is a corner or through lot, the
front yard is located on every street location.
Mr. Hess stated that if you have a corner lot, the portion that
is the shortest is the front of the lot. Mr. Harsch stated that
is true. However, on a corner lot or through lot, for setback
purposes, all street frontages are required to have the same setback.
Mr. Anderson asked when the Applicant started to build this fence
and if they were stopped by Staff. Ms. Manore stated they were
stopped after the pillars, gate and fencing on the west side of
the property had been installed without a permit. Mr. Anderson
pointed out that the setback on the pillars is only 3' feet.
Ms. King presented three letters of support (see attached). The
Chairman read them into the record. Steve Behan of Behan Stone
Masonry, Inc. (Petoskey), Ms. Karen King of 115 Eaton and Mr.
Donald C. Exelby of 112 Eaton.
Ms. Beckie Robinson, stated the reason for this fence is due to
the unique layout of the property. There is a steep bank with
the house facing the lakeside. The entrance is off of Eaton which
creates a security vulnerability.
Chairman Withrow asked if any of the three parties present are
security experts. Ms. Robinson stated she is in the management
consulting and information technology field. We have a lot of
work with difficult security and the behavior of stalkers and
people who know a public figure and find where they live. She
pointed out that since Judge Terrill's property is a summer rental
property, it is listed on the Internet in his name. Judge Terrill
is currently under a protective order against a stalker who received
a suspended sentence.
Mr. Harsch stated that if the Applicant observed the front yard
setback he could build the fence to 6' feet. There is substantial
room to place the fence back 35' from the front yard setback.
The property contains 1.32 acres of area.
Mr. Anderson expressed surprise that the contractor would install
the posts without a permit.
Mrs. Cross pointed out that the Applicant could go back 35' and
build the size of the fence he wants. The builder should be liable
for repairing any damage created by the violations.
Staff pointed out that there is also a variance request for "opacity"
for the 19' of proposed stone fence. Staff pointed out that there
is also a portion of 6' fence located along the west side of the
property.
Chairman Withrow reviewed the variance requests:
1) An opacity variance for the stone wall and five pillars,
2) A 1.5' height variance for the stone wall
3) A 2.0' height variance for the
wrought iron fencing, five
pillars and entrance gate.
4) A variance in the required 15' setback distance from the front
property line.
1988 - Donald Atwood - 403 Michigan
Avenue - Variance in front yard setback for wrought iron fence
for safety.
1989 - Tim Moore - 200 Auld - 3' height variance and front yard
setback for safety reasons.
Chairman Withrow also review past variances:
00-23ZBA - Elliott - 107 E. Upright - variance for 1' in height
- denied on basis that it did not meet any of the special
findings.
He stated that the zoning ordinance has been amended, effect 10/16/02
which allows for 4' high fences. He pointed out that a portion
of the fence has been installed without a permit.
VARIANCE CONDITIONS. All of the following conditions, in the judgement
of the Board, shall exist before any variance from this Chapter
shall be granted. Any variance granted shall:
(a) Not be contrary to the public
interest or the general intent and purpose of this Chapter.
(This Chapter is adopted pursuant to
the authority conferred by Public Act 285, P.A. 1931, as amended
of the State of Michigan, for the purpose of promoting and protecting
the public health, safety, peace, comfort, convenience and general
welfare of the inhabitants of the City of Charlevoix by protecting
and conserving the character and social and economic stability
of the residential, commercial, industrial and other use areas,
by securing the most appropriate use of land; preventing overcrowding
of the land and undue congestion of population; providing adequate
light, air and reasonable access; and facilitating adequate and
economical provision of transportation, water, sewers, schools,
recreation and other public requirements.)
The existing and proposed pillars,
gate and fencing do not meet the conditions and general intent
of this Chapter and are contrary to the public interest.
(b) Not permit the establishment
of a use within a given district which is prohibited therein.
The use requested is allowed in the R-1 district.
(c) Not be a variance so commonly
recurring as to make reasonably practical the formulation of
a general regulation by the City Council
The frequency of such requests
having similar circumstances is minimal.
(d) Not cause substantial adverse
effect to properties in the immediate vicinity or in the zoning
district where the variance is located.
The potential for adverse impact
is minimal.
(e) Relate only to property that
is described in the application for the variance.
The request only relates to the
property described in the application.
Chairman Withrow explained
that one of the following findings must be met in order for the
Board to grant a variance.
SPECIAL FINDINGS. If all the foregoing variance conditions
can be satisfied, a variance may be granted when the Board determines
that any one of the following special findings can be clearly
demonstrated:
(a) 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.
The Board agreed that there is
room in this lot to move the fence and meet the requirements
of the ordinance.
(b) 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.
The Board agreed that the wording
is specific in that it applies to this "property" and
"other properties". It does not talk about the individuals
that inhabit these properties.
(c) That such variation is necessary
for the preservation of a substantial property right possessed
by other properties within the same zoning district.
The Board agreed, that in the
past twelve years only two fence variances have been granted
and one has been denied. Based on this fact, it was determined
that there is no substantial property right possessed by other
properties in the same zoning district.
Mrs. Cross stated there is no hardship involved since the fence
can be moved back.
Mr. Anderson stated that while he understood the need for security,
the fence could be moved back 35' and still allow for security.
He expressed concern with the Applicant installing part of the
fence and posts without a zoning permit (especially since it is
only 3' from the front property line).
Mr. Horton stated it would improve the property, but that we must
go by the requirements of the zoning ordinance.
Motion by Cross Supported by Anderson
to deny the following variances for Case #02-20ZBA
1) An opacity variance for the stone wall and five pillars,
2) A 1.5' height variance for the stone wall
3) A 2.0' height variance for
the wrought iron fencing, five
pillars and entrance gate.
4) A variance in the required 15' setback distance from the front
property line.
These variances where denied on the basis that there is
an alternative location for the proposed fence that will meet
the requirements of the ordinance.
It could not be clearly demonstrated that any of the conditions
of the special findings could be met.
Ayes: Anderson, Withrow, Cross and Horton
Nays: None
Motion Carried
ITEM #2 PUBLIC HEARING FOR CASE#02-21 - ZBA - SUTHERLAND-
403 W. UPRIGHT
Staff indicated that
there were two phone calls from neighbors who could not attend
the meeting. Mr. Levengood and Mr. Phil Havens were in favor of
this request.
Mr. Carlson, Contractor, explained that the Applicant is requesting
a variance of 3.5' from the front property line to add to the
existing front porch which measures 7' x 8'. The existing porch
will be removed and replaced by the proposed porch. He pointed
out that there are two houses across the street that are closer
to the front property line. He also pointed out that there have
been other homes on this street that have received similar variances.
Chairman Withrow stated the Applicant is asking for a 3.5' variance
in the front yard setback. The ordinance requires 25'. Section
5.192 has allowed for the averaging of the adjacent properties.
He pointed out that the existing porch is elevated and is a preexisting
structure.
Mrs. Cross excused herself from voting on this case.
VARIANCE CONDITIONS. All of the following conditions, in the judgement
of the Board, shall exist before any variance from this Chapter
shall be granted. Any variance granted shall:
(a) Not be contrary to the public
interest or the general intent and purpose of this Chapter. (This
Chapter is adopted pursuant to the authority conferred by Public
Act 285, P.A. 1931, as amended of the State of Michigan, for
the purpose of promoting and protecting the public health, safety,
peace, comfort, convenience and general welfare of the inhabitants
of the City of Charlevoix by protecting and conserving the character
and social and economic stability of the residential, commercial,
industrial and other use areas, by securing the most appropriate
use of land;
preventing overcrowding of the land
and undue congestion of population; providing adequate light,
air and reasonable access; and facilitating adequate and economical
provision of transportation, water, sewers, schools, recreation
and other public requirements.)
The proposed porch expansion is
an appropriate use of the land and does not create a situation
where the intent and purpose of the Ordinance will be compromised
since the addition follows the existing front porch.
(b) Not permit the establishment
of a use within a given district which is prohibited therein.
The use requested is allowed in the R-2 district.
(c) Not be a variance so commonly
recurring as to make reasonably practical the formulation of
a general regulation by the City Council
The frequency of such requests
having similar circumstances is minimal. There have only been
five similar cases in the past 5 years.
(d) Not cause substantial adverse
effect to properties in the immediate vicinity or in the zoning
district where the variance is located.
The potential for adverse impact
is minimum since the new porch area (plus 1' eave) follows the depth of the existing porch.
(e) Relate only to property that
is described in the application for the variance.
The request only relates to the
property described in the application.
The Board agreed that the five general findings have been met.
SPECIAL FINDINGS. If all the foregoing variance conditions
can be satisfied, a variance may be granted when the Board determines
that any one of the following special findings can be clearly
demonstrated:
(a) 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.
None
(b) 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.
None
(c) That such variation is necessary
for the preservation of a substantial property right possessed
by other properties within the same zoning district.
There have been five similar variances
granted in the past and the Board agreed that the variation would
be necessary to preserve a substantial property right possessed
by others in the same zoning district.
Motion by Horton Supported by Anderson
to grant Case #02-21 - Sutherland, a 3.5' variance in the front
yard setback to extend the existing entrance porch. 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.
Ayes: Withrow, Cross, Horton and Anderson
Nays: None
Motion Carried
Item #3 PUBLIC HEARING FOR - CASE #02-22ZBA - IRWIN/DUFFY -
302 NETTLETON
Deanne Irwin, Applicant and Larry Porath were present
to present the case and answer questions.
Mr. Porath explained that the owners have moved from Chicago and
would like to add additional space for a dining room, family room
and covered porch.
There is an abandoned alley running through the property which
has created the odd shape to the property. He pointed out that
because of the configuration, there is only about a 1' allowable
building envelope.
Staff indicated that was no input from any neighbors within 300'
of the subject property.
The Board reviewed the general findings.
VARIANCE CONDITIONS. All of the following conditions, in the
judgement of the Board, shall exist before any variance from this
Chapter shall be granted. Any variance granted shall:
(a) Not be contrary to the public
interest or the general intent and purpose of this Chapter. (This
Chapter is adopted pursuant to the authority conferred by Public
Act 285, P.A. 1931, as amended of the State of Michigan, for
the purpose of promoting and protecting the public health, safety,
peace, comfort, convenience and general welfare of the inhabitants
of the City of Charlevoix by protecting and conserving the character
and social and economic stability of the residential, commercial,
industrial and other use areas, by securing the most appropriate
use of land;
preventing overcrowding of the land
and undue congestion of population; providing adequate light,
air and reasonable access; and facilitating adequate and economical
provision of transportation, water, sewers, schools, recreation
and other public requirements.)
The proposed is an appropriate
use of the land and does not create a situation where the intent
and purpose of the Ordinance will be compromised.
(b) Not permit the establishment
of a use within a given district which is prohibited therein.
The use requested is allowed in the R-1 district.
(c) Not be a variance so commonly
recurring as to make reasonably practical the formulation of
a general regulation by the City Council
The frequency of such requests
having similar circumstances is minimal.
(d) Not cause substantial adverse
effect to properties in the immediate vicinity or in the zoning
district where the variance is located.
The potential for adverse impact
is minimum since
(e) Relate only to property that
is described in the application for the variance.
The request only relates to the
property described in the application.
SPECIAL FINDINGS. If all the foregoing variance conditions
can be satisfied, a variance may be granted when the Board determines
that any one of the following special findings can be clearly
demonstrated:
(a) 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.
(b) 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.
The Board agreed that due to the
odd shape of this lot, there are exceptional or extraordinary
circumstance that apply to this property that do not apply to
other properties in the vicinity.
(c) That such variation is necessary
for the preservation of a substantial property right possessed
by other properties within the same zoning district.
The Board agreed that there are
other properties in the same zoning district, with have received
similar variances (11).
The Board reviewed, with the Applicant the location of adjacent
trees and structures at the rear of this property.
Motion by Anderson Supported by Horton
to grant a variance of 4.5' in the rear yard setback for Case
#02-22ZBA to allow the Applicant to construct an addition to the
north side of their house.
This variance is granted based on special findings "b"
and "c".
Ayes: Cross, Horton, Anderson and Withrow
Nays: None
Motion Carried
H) OLD BUSINESS
The following Decisions & Orders were approved by voice vote.
1. Decision & Order - Case #02-12ZBA - Snabes
2. Decision & Order - Case #02-16ZBA - Baldwin
I) OTHER COMMUNICATIONS
None
J) NEW BUSINESS
The Board did not have any specific topic requests for the
special meeting.
K). PUBLIC INPUT, NOT RELATED TO OTHER AGENDA ITEMS
None
L). ADJOURNMENT
The meeting was adjourned at 8:00 P.M.