CITY OF CHARLEVOIX

BOARD OF APPEALS

Minutes

December 20, 2000
City Hall - 1st Floor

7:00 P.M.

A) CALL TO ORDER

The meeting was called to order by Chairman Withrow at 7:15 P.M.

B) ROLL CALL

Members Present: Withrow, Cross, Ostling, Anderson, Nuttle and Hodgson

Members Excused: None

Absent: None

Others Present: G. Harsch, Planning Director, D.Manore, Zoning Administrator

 

C). DESIGNATION OF ALTERNATES

Nuttle

D). APPROVAL OF MINUTES

The minutes of the regular meeting of October 18, 2000 were approved as amended

E) APPROVAL OF AGENDA

The Agenda was approved as presented

F) INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST

None

G) PUBLIC HEARINGS

1. Case #00-38ZBA - 225 Park Avenue - Andre Aerne - Appeal

Prior to commencement of the meeting, the Board reviewed the following documents:

Exhibit "A": - Memo from Jim Young, City Attorney-12/20/00

Exhibit "B": - Staff Memo of handouts - 12/20/00

Exhibit "C" - List of 1999 and 2000 conforming extensions

Exhibit "D" - Correspondence from Robert J. Klein - 12/18/00

Exhibit "E" - Correspondence from T.J. Creswell - 12/14/00

Exhibit "F" - Correspondence from T.J. Creswell -

Exhibit "G" - Correspondence from Stan & Jane Nelson - 12/18/00

Exhibit "H" - Correspondence from T.J. Creswell - request for appeal - 12/1/00

Exhibit "I" - Correspondence from Scott Beatty - legal concerns

Mr. John Pearl was present, representing Mr. Aerne. Mr. Scott Beatty, Attorney, Mr. & Mrs. T. Creswell, Appellant were also present.

Mr. Beatty stated he had a conversation with Mr. Creswell regarding his view from his property. Mr. Creswell indicated to Mr. Beatty that he had no objection to the addition of the garage. It was noted on the application as a one story garage. Mr. Beatty indicated what was meant was that the one story is the room above the garage, as viewed from the Park Avenue side. It would appear from the drawings that the garage would be below grade and would really not create a height problem. If he reads the plans correctly, the garage will not be seen, but an additional living space being sought by the owner would be visible.

Mr. Creswell understands that he does not have a common law right to a view. What he does understand is that he has a right to protection by the zoning ordinance, just like any other citizen. If a permit is to be issued, it must be issued in accord with the standards set in the ordinance, that binds everyone living in Charlevoix.

When Mr. Creswell looked at this he felt for reasons described in a letter to the Zoning Administrator that resulted in this hearing, that it did not comply with the Ordinance (the statute that governs us). Mr. Beatty asked if the Board members have visited this site?

The members had visited the site.

Mr. Beatty stated reason we have setbacks is to lessen the density so we don't get five quart houses on two quart lots, building wall to wall and view corridors being taken away. This is what is happening in this case. It is not being taken away by the garage, but by the second story great room/living addition. He is not entitled to his view, but is entitled to the view the law entitles him to which are the setbacks.

Mr. Beatty stated that historically, the side of the house facing Park Avenue has been considered the front. The address is on Park Avenue, as is the front door. Apparently, that is not the case because this lot is wider on Park than it is on Grant Street. The code says the front of the house, on a corner lot is the most narrow section of the lot. So these (plans) are not accurate. This is not a front but is a side elevation. If that is the case, then there is an additional violation of a rear yard setback, which should be 25'. What you have is 12' on the rear yard and there should be 25' on the front yard. You have a tremendous encroachment in the rear yard setback. If you have 12' and the requirement is 35', you have only about 1/3 and you are violating that by about 2/3's.

Chairman Withrow asked if Mr. Beatty was aware that there are many houses in Charlevoix that are in the same condition. Mr. Beatty stated he does not. He recognizes that there are houses that pre-date the ordinance. He does not recognize that there should be any house in Charlevoix that is non-conforming which is permitted to increase the mass of that non-conformance to the extend that this project is asking for.

Most zoning contains language that states you do not increase the size or volume of the building unless the nonconformance is eliminated. Charlevoix's code speaks to that under the nonconforming use section. It says that an existing nonconforming structure may be altered or remodeled within the interior dimensions of the building. This is fairness to the homeowner since you cannot take away what he had before the ordinance made it illegal to do that. It says that provided no exterior structural alterations are made except those that are required by the zoning inspector.

Some of the other parts of the statute that we will be talking about are a little more involved, ambiguous and perhaps need a little more interpretation. He stated that he is hard pressed to mis-read this particular section. He is stunned that a permit would be issued over this section. He read... "an existing nonconforming structure may be altered or remodeled within the interior dimensions of the building provided no exterior structural alterations except those required by the building inspector." What is this, if it is not a major outside structural addition. This is not a change within the interior of the existing home as it sits here.

Chairman Withrow asked to see the section Mr. Beatty is referring to. Staff indicated that section has been included in the staff report. Chairman Withrow reviewed Section 5.221(2) of the ordinance. The Chairman asked if Mr. Beatty was aware of Section 5.221(3) of the ordinance. This section goes beyond Section 5.221(2).

Mr. Beatty questioned whether this applies to this situation. Mr. Harsch explained that Section 5.221(3) does not apply to this situation. This section has to do with side yards and in-fill, which we are not dealing with. This section says that if a structure encroaches into a side yard and not to the full extent of the building, it could be in filled under Section 5.221(3). Mr. Beatty agreed that this section does not apply.

Mr. Beatty again cited Section 5.221(2). Mr. Beatty stated they assumed that there would be variance hearing on this. This is what should happen. The neighbors should be given a chance to be heard. The Board should decide what is a clear violation of your statute and should it be permitted under the criteria for variances. He stated he has a lot more to say to the Board.

He stated that this evening he was handed a letter from Mr. Young (12-18-00) which states"

He stated he does not see any clearer statement of a standard. This is black and white standard in the ordinance. He questioned whether past practices will be addressed. Chairman Withrow stated he understood Mr. Beatty's viewpoint.

Ms. Cross asked why staff felt there was not a need for a variance under this section. Mr. Harsch stated that in the staff report (item #4), Section 5.221(2) addresses itself to exterior structural alterations to the existing structure. Therein lays the argument. We then said:

In the City of Charlevoix he suggested that approximately 50% of the structures have that type of nonconformance because of the lot sizes and setbacks and requirements put into the ordinance. Staff was asked to provide a list of these types of situations. Staff has included a list for the past two years, where in similar events there was some nonconformity with the existing building but the requested new construction was conforming and a permit was issued. That has been the administrative way that section of the ordinance has been read, historically with regard to the administration and the reason, in this case, we found that it was appropriate to issue the permit.

Chairman Withrow asked if any of the items on the list obtained variances. Mr. Harsch stated they did not and referred to Mr. Young's memo where he pointed out that the Board should consider longstanding administrative practices.

Mr. Beatty stated this is wrong if administrative practice flies in the face of the ordinance. He guaranteed the Board that other communities around here do not approach similar provisions in their zoning ordinance in the same fashion. Mr. Beatty stated he has not seen the list referred to and has been unable to make a determination. He stated that he is not asking to kill or grant this project. Make them ask for a variance and give folks a chance to speak to the Board on this issue. The reading of a clear prohibition in the fashion that staff does, makes no sense. Why have this language in here as phrased, if the interpretation is that you do not have to expand a nonconforming structure if the part being added on conforms. The expansion of this structure with the addition is an outside structural change and is enlarging a nonconforming uses (structures). The reason these provisions are in zoning ordinances is so that nonconforming uses (structures) are not enlarged. They have a 1/3 of what they need on the rear yard setback.

Chairman Withrow asked when this structure was built. Staff stated it was built in the 1860s.

Mr. Nuttle asked Mr. Beatty based on his argument, to specify what the orientation of the house would be in referrence to the front or side. Mr. Beatty stated the argument is that it does not matter because you cannot expand this thing because it is nonconforming unless you seek a variance. Mr. Nuttle asked what Mr. Beatty's point was if it did not matter and why did he bring it up. Mr. Beatty stated because the City attorney was not provided that fact in the letter and he does not reference that as one of the facts he had. In addition, the point he was trying to make was that between front and rear yard setbacks there are adequately proportioned houses on City lots. It is important which is the front and rear yard setback.

Mr. Nuttle asked how a house address is assigned. Mr. Harsch stated house addresses are assigned by the City. Mr. Harsch stated there is an ordinance provision which dictates what is a front yard; on a corner lot it is the narrowest dimension of the lot. Mr. Harsch stated addresses are not necessarily assigned by what the ordinance says is the front or side yard. They are assigned so that building can be identified for services. Mr. Nuttle pointed out that it appears that the house was built to face Park Avenue. Whether they built the house wrong on a lot that we changed definitions of after it was built can be a question. Do we have the right to change the front yard of a house that was built in 1873?

Mr. Nuttle stated that while Mr. Creswell's house probably conforms, there are probably a lot of houses in the City that do not conform. Short of tearing down the house, the address or front of the house has a lot of bearing on the outcome of this case. Staff indicated they used Grant Street as the front yard. Chairman Withrow pointed out that the ordinance defines the front yard regardless of the orientation of the house.

Mr. Beatty stated that is the reason things are grand fathered. If they were there before, they have a right to remain. What you don't have a right to do is expand the nonconformance. One of the reasons they will fail, if they ask for a variance is that there is no need for it. This is a big house by itself and this person wants to put a bigger house on a smaller lot. He knew what it was when he moved in. The code says you cannot expand the outside structure on a nonconforming house. The attorney says you have to rely on the standards of the ordinance. The Board has the right to determine what this section says. Mr. Beatty speculated that this section was in place when Mr. Aerne bought this house.

Mr. Harsch stated the zoning ordinance was enacted in 1978. June Cross stated Mr. Aerne bought this house in the 1960's.

Mr. Beatty stated the appropriate setbacks for this house would be 25' on the front yard, 35' on the rear and 25' on the side yard facing Park Avenue, as stated in the ordinance.

Mr. Harsch stated there is a provision in the ordinance that addresses adjacent setbacks.

The one adjacent property to the east is the Ranger house which is built approximately 4' from the property line. It is closer to Park than what is being proposed for this structure. If there were adjacent structures on either side, they would be averaged. In this case, there is only one adjacent structure. It also applies to corner lots for either frontage.

Mr. Beatty read section 5.192 of the ordinance.

He stated that it does not say that one lot sets the mark. The purpose of that standard is to say that on the adjacent lots, they are averaged. There are two ways to interpret this section. There are two adjacent lots, one on Park and one on Grant. You go down along Park Avenue and average them all. It is not what Mr. Harsch stated. Staff did not go down the street and average all the lots. It does not say one lot sets the bench mark. Mr. Beatty stated that all the lots going down Park Avenue are adjacent.

Mr. Nuttle stated that adjacent means next to and not all the way down the block. Mr. Beatty stated there are two lots, one on Park and one on Grant. Mr. Beatty asked the Board to interpret this section. Mr. Nuttle asked why the house on Grant was not considered. Mr. Harsch stated for setbacks on Park, the adjacent house on Park would be considered. For the setback on Grant, the adjacent house on Grant would be considered. The house on Grant was not considered since the setback requirements were met on that side.

Mr. Beatty again cited Section 5.192. His issue is that one lot cannot set the standard. Either you have to go down Park Avenue and average all the lots or use Grant. Mr. Harsch stated that the ordinance assumes that there would be lots on either side and did not address corner lots. When we began to look at this administratively, we looked at that lot in the block and the one across the street. The house across the street was then not considered adjacent. Administratively, this is how this section has been handled.

Mr. Withrow stated this is unique situation. Mr. Beatty stated that this section also applies to corner lots (5.192). He stated that the average setback line should be averaged using all the houses down the block. Mr. Withrow asked why Mr. Beatty would not look to the west in determining adjacent properties. Mr. Beatty stated there are no adjacent lots to the west. The other thing to do is go around the corner and use the house on Grant Street.

It is unreasonable to administratively pick one lot without taking other lots into consideration.

Mr. Beatty asked staff what was used in determining the Ranger setback. Ms. Manore stated the setback of 3' 10 3/8" from the eave line to the sidewalk was used. Mr. Beatty presented a written memo from Mr. Creswell, to be included in the record. He also asked if all correspondence is part of the record. He was assured that all correspondence is part of the record. Mr. Withrow pointed out that there are a number of issues that have not been discussed. Mr. Beatty stated that as long as it is part of the record, he would be satisfied.

Mr. Beatty addressed the minimum lot area (Section 5. 43(1). He asked if the building line is the front lot width of 70'. Mr. Harsch stated there is a provision about the use of nonconforming lots of record in the ordinance. Mr. Beatty stated he thought staff's position was that this is a conforming lot. Mr. Harsch stated it is conforming in regards to the lot size of 9,000 sq. ft. Mr. Harsch stated there is 60' at the street line. Mr. Nuttle pointed out that this lot is a trapezoid. Mr. Harsch stated it may not quite meet the 70'. Mr. Beatty asked staff if the statute requires this. Mr. Harsch stated it does not since there is a provision that addresses lots of record that do not meet the code.

The Board, Staff and Mr. Beatty discussed different measurements from Grant Street and the requirements of the ordinance. Ms. Cross asked if this is a nonconforming lot. The only requirements in an R-2 zone are the 9,000 sq. ft. and 70' at the building line. Mr. Beatty asked if this is a conforming or nonconforming lot. Mr. Harsch stated the building line is the line at which you can build, which is the setback line. There is not 70' at that point. To that respect, the lot is nonconforming in regards to width.

Mr. Beatty disagreed, stating the code does not say at the setback line, it says at the building line. A cul-de-sac, with pie shaped lots are all conforming lots. The statute says they need to have 70' where the building is located(Section 5.43). Mr. Harsch pointed out that there is no definition of "building line" in the ordinance.

Mr. Ostling left the meeting at 8:40 P.M.

Mr. Withrow read the following into the record:

The Board discussed whether the building line is determined by the front property line.

Mr. Beatty stated that Mr. Creswell also contends that this proposal exceeds the 30% lot area, due to the drop off which is not usable. Chairman Withrow asked staff to explain usable lot area. Mr. Harsch stated a non-usable lot area would be as follows. A metes and bounds lot where the description went to the center of the road right-of-way would not be considered usable area. Wetlands would be considered usable lot area from the point of view of calculating open space. Mr. Withrow stated the concept is that a retaining wall could be built to make it a usable lot.

Mr. Beatty submitted superimposed photographs of the site. The Board reviewed the photos.

Mr. Beatty addressed the retaining wall. It appears that it is required to form the support for the proposed structure. It is a structure that comes within 10' of the street. He suggested that all structures are required to meet the setbacks. He asked if the retaining wall is required to support the foundation. If that is so, it is part of the structure and the height of the structure needs to be measured from where the grade meets the retaining wall. Mr. Harsch stated retaining walls that are put on the property to alter grades are not part of the structure. This structure will have a foundation built into the ground outside of the retaining wall. The retaining wall is supporting the ground but not the structure.

Mr. Beatty refered to Section 5.11(7):

Under the code, any structure that is built for support of the building is part of this. He contends that the grade around this structure is where the height should be measured.

Mrs. Cross asked if the retaining wall has anything to do with the house. Mr. John Pearl, Contractor, stated it does not, it is to stabilize the bank. The wall was constructed first is a matter of cost. It is very cost effective to install it first.

Chairman Withrow stated that if the retaining wall was not installed, the structure could still be built by adding to the foundation. If the wall was not there, how would the height be measured. Mr. Harsch stated the height is measured from the lowest finished grade about the building. Chairman Withrow asked what the elevation would be if the retaining wall was not there. Chairman Withrow stated the retaining wall is not part of the structure. However, is the retaining wall being installed to increase the height of the building and change the elevation.

Mr. Nuttle asked where the beginning point of the building height was established. Mr. Harsch stated it is located at the rear of the existing building. He pointed out that the bottom of the garage doors are at the same grade as the existing finished grade about the building, or 616.5.

Chairman Withrow asked if the NE corner of the building was used as the bench mark. Mr. Harsch pointed out that it is really the NW corner of furthest extension of the building to the north which was used. Mr. Beatty stated he does not have a site plan. This retaining wall seems to come in and supports the building and almost comes within 10' of Grant Street. If it is required for support of the structure, then the measurement should be made from the retaining wall.

Mrs. Cross asked Mr. Pearl to address this questions. Mr. Pearl stated the retaining wall follows along at the break point of the bank. When we filed for our Soil Erosion permit, they wanted us to stabilize the bank to stop any erosion. We further silt fenced that area as instructed. The retaining wall is to prevent erosion down the bank. This is what these blocks are specifically designed for, to stop soil erosion. These blocks have been cut into the bank without any disturbance to the lower vegetation.

Mr. Nuttle asked if the structure could be built without the retaining wall. Mr. Pearl stated it could be built without the wall. Mr. Nuttle pointed out we are only talking about soil erosion, habitat preservation and prevention and not an integral part of the building. Mr. Pearl pointed out that vegetation would not grow if the building was located where the retaining wall is located.

Mr. Beatty asked if a permit was needed for the retaining wall if it violated the front yard setback. Mr. Harsch stated it would not. Mr. Beatty asked if structures needed permits, and did you allow a built structure to violate a setback. Mr. Harsch stated it is not a structure. It is an integral part of the grading of the property, as can be found at other locations in the community. Mr. Beatty again cited Section 5.11(7). Chairman Withrow asked Mr. Beatty if that would include driveways.

Mrs. Cross addressed the 70' width question. Mr. Harsch read the following:

Mr. Harsch stated that as long as a lot did not go under 40' feet, it could be built on.

If you came in with a lot that was not a `lot of record', it would be required to have a lot width of 70' at the setback line. Mr. Beatty stated it does not say `setback line'.

Mr. Beatty stated the City attorney has stated that these things are judged by the standards. There are clear standards that say you cannot do any exterior structural alterations on a nonconforming building. He stated they need a variance to put this open to public hearing and make a decision according to the variance criteria, as well as the issues put before you tonight.

Mr. Bob Timms, 303 Clinton, addressed the front yard setback with a street on one corner. He contends that the people own that street, which should be the next lot. The 25' for that street should be used.

Mr. Nuttle asked what their authority is to reverse the issuance of the zoning permit. Chairman Withrow referred to Mr. Young's letter that states:

Mr. Hodgson referred to staff's memo of December 20, 2000 listing two years of conforming extensions to existing nonconforming situations. He asked if these are judgment calls and what criteria was used. Mr. Harsch stated they were based on whether or not the structural addition requested met the requirements of the ordinance. Mr. Harsch pointed out that section 5.226 pertains to nonconforming lots.

The Board members discussed the issues presented by Mr. Beatty and Staff's issuance of the permit.

Chairman Withrow suggested that the lot is conforming and that the building is nonconforming. Mr. Harsch stated that hinges on the interpretation of "building line". Chairman Withrow stated that this is a conforming lot and that Section 5.226 does not apply. He stated that this section talks about "lots", the other section talks about the structure and how it can be situated. Mr. Beatty stated that section only applies to lots that are nonconforming. Chairman Withrow agreed that Section 5.226 does not apply in this situation.

Chairman Withrow pointed out that this Board is here to interpret the ordinance and not rewrite it. Chairman Withrow referred to Item #4 of the staff report. He asked why an addition would not be considered something that modifies an existing structure. Mr. Harsch stated that refers to only the structure that currently exists on the property. Chairman Withrow asked why an addition would not be considered a structural alteration to the existing structure. Mr. Harsch stated it may be read that way, but in the past we have not read it that way. We have read it to mean that a structure could be extended, as long as that extension was conforming. He is not extending the nonconformance on the east side of the property.

Chairman Withrow addressed the question of adjacent lots. The Board discussed averaging. Mr. Harsch stated looking at the Timm's definition of "adjacent" there is an intervening street so the lot on the next block is not adjacent. Chairman Withrow asked if there was a house across the street that was 10-15', would it make a difference. Mr. Harsch explained that when looking at the definition of "adjacent" it said immediately next to. Immediately next to the lot is a street and not a lot. Mr. Harsch stated there is a house adjacent to Grant Street house and we would have looked at that house if the Grant Street setback was in questions. We treat each street separately. We have never applied the adjacency of two houses on different streets.

Chairman Withrow addressed the 70' building line. Mr. Harsch suggested that the building line was the setback line and this lot was nonconforming. Because of that they had the right to continue to use that. However, there may be an issue regarding this section of the ordinance. The Board reviewed Section 5.43(1). Mr. Harsch stated that if the building line were at the front yard setback, it would be approximately 64'. If it were at the location of the proposed building, it would be at about 66'. Mr. Nuttle stated that would make the lot nonconforming.

Chairman Withrow stated it is the location of the building that is nonconforming. Mr. Nuttle stated you need two definitions to have a conforming lot. Chairman Withrow stated that where ever that building will be placed there must be 70' in width. If it is a nonconforming situation, you need a variance.

Mr. Anderson suggested that the 70' has nothing to do with a conforming lot. Mr. Nuttle questioned why is that language included in the definition of a conforming lot if it has nothing to do with a conforming lot. Mr. Nuttle stated then that there is only one definition for a conforming lot, which is 9,000 sq. ft. Mr. Harsch stated it is one that meets all the other dimension requirements of a lot. Mr. Nuttle asked if a conforming lot is a buildable lot.

Mr. Hodgson referred to the definition of a nonconforming lot. Chairman Withrow suggested that the 70' is only where you can place a conforming structure. If you cannot meet that, then you need to get a variance. Mr. Nuttle asked staff has treated any zoning approvals on lots containing less than 9,000 sq. ft. Ms. Manore stated there are other requirements that are taken into consideration. If this lot contained less than 9,000 sq. ft., the section allowing 40' at the building line would prevail.

There are legal nonconforming lots of record. New construction can occur on a nonconforming lot as long as you meet the setbacks.

Mr. Nuttle suggested that if this is conforming lot, the 70' applies and if it is a nonconforming lot, the 40' applies.

Chairman Withrow stated that the retaining wall is not a structure. The question before this Board is whether the issuance of the zoning permit was correct. While it was not intentional, the permit was issued in error due to the fact that they have not met the 70' at the building line. For this reason, a variance should be requested.

Mr. Nuttle asked if the proposed structure has been staked and surveyed. Mr. Pearl stated it has and that Mr. Ranger can identify the building line.

Mr. Beatty stated there is also the issue of the expansion off a nonconforming use. If there is a finding on that it will allow either side to go forward to Circuit Court. If there is not, this zoning permit will be invalid. If another permit is issued, another appeal will be put forth.

Chairman Withrow stated the Board covered that issue.

Mr. Anderson pointed out that a field measurement may prove that there is 70' at the building line.

Motion by Withrow Supported by: Cross

The Board concurs with the following items:

That the Board believes that the adjacent building setback only applies to the property adjacent to this property on the street in question. In this case, there is only one adjacent property, which is acceptable.

Enough evidence has been presented to indicate to the Board that the retaining wall is not part of the structure and is solely a function of soil erosion.

There was an omission regarding identifying the building line to ensure that it met the required 70' at the building line on this conforming lot which meets the 9,000 sq. ft. requirement.

For this reason, the Board requires that a variance be requested or the structure be brought into conformance with that requirement.

Ayes: Hodgson, Anderson, Withrow, Cross

Nays: None

Abstain: Nuttle

Motion CARRIED

 

I) OTHER COMMUNICATIONS

I). NEW BUSINESS

K). PUBLIC INPUT, NOT RELATED TO OTHER AGENDA ITEMS

L). ADJOURNMENT

The meeting was adjourned at 9:15 P.M.