CITY OF CHARLEVOIX
PLANNING COMMISSION
MINUTES
May 10, 2004
A)
CALL TO ORDER
Chairman Kusina called the meeting
to order at 6:00 PM at the Coast Guard Training Room
Members present: Kusina, Dobulis, Hodgson, Whitney, Sitzma,
Hess,
Cross and Flanders
Members Absent: Fels
Staff Present: Harsch, Graham and Manore
B)
INQUIRY INTO POTENTIAL CONFLICTS OF INTEREST
None
C)
APPROVAL OF AGENDA
The agenda was approved as
presented.
D)
APPROVAL OF MINUTES
Motion by: Sitzma Supported by: Whitney
To approve the minutes of the
regular meeting of April 12, 2004 as presented.
Approved by unanimous voice vote.
E) CORRESPONDENCE
None
F) PUBLIC
HEARINGS
None
G) OLD BUSINESS
1. Discussion regarding RL Hughes
and the MC zoning district
Mr. Harsch stated that based on the
Commission’s request, Mr. Bryan Graham, Assistant City Attorney is present to
assist the Commission.
Attorney’s Scott Beatty and Richard
A. Shapack were present to argue their case. Mr. John Winn, John Cross and Mr.
Ward were also present.
The issue that needs to be addressed
is whether there is an obligation on the Commission’s part to proceed with Mr.
Hughes’
request.
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Mr. Kusina asked what will occur if
the Commission does not proceed with this matter.
Mr. Graham stated there is no legal
requirement that the Commission review the Zoning Ordinance on a periodic basis
or automatically respond to every amendment request.
However, there is always a legal
obligation by the City to insure that their zoning regulations are reasonable.
The courts have looked at significant changes of character in a particular
neighborhood which transforms a reasonable ordinance to an unreasonable
ordinance, based on that change.
This situation is a planning and
factual issue. If you choose, as a matter of planning policy, to allow some
type of reasonable waterfront setback in the MC district, the Court would
probably uphold such a reasonable policy choice.
Michigan Law does not grant someone
a vested interest in zoning classifications and regulations. If the property owner has not begun substantial
construction, the Planning Commission is free to change the setback
requirements.
Mrs. Cross stated that when someone buys
property they are aware of the zoning requirements they must abide by.
Mr. Graham stated the courts
recognize that when people buy land they are aware of the zoning
regulations. However, just because
someone buys land knowing the regulations does not stop them from challenging the
validity of those regulations.
Mr. Graham indicated that the Commission’s
focus should be on planning issues. Is
it a good idea to have setbacks, or not. What are the planning
justifications. Every zoning regulation
must have a reasonable governmental interest, which must be advanced in a
reasonable manner. This is referred to
as “substantive due process”.
You have some uses in the MC
district that require water access and others that do not. Mr. Graham indicated that he could not tell
the Commission how a court would rule on this matter without the facts and a
planning analysis to determine if there has been a significant change in the
character of the area.
Mr. Hess asked if there are any
other properties in this area with similar problems. Mr. Harsch stated he is not aware of any such properties. Most properties along the south side of
Round Lake are used in a more intense way.
The Hughes property is classified as
a “site condominium”. He indicated that
the Association is the riparian.
Mr. John Cross pointed out that the
DNR will not allow anything to build over the water.
Mr. Graham cautioned that when
dealing with policy questions, the Commission should discuss things without a
reference to a specific issue. Mr.
Graham presented a number of scenarios to the Commission.
The Commission reviewed each parcel
along the south side of Round Lake.
Mr. Dobulis stated Round Lake is
unique in that it allows large boats to be placed at the waterfront properties.
Mr. John Winn, Resident, stated that
Mr. Hughes bought and built on his property with the knowledge that the
property was zoned MC. The new owner of
the “Lieberman” property purchased his property with the knowledge that he
could build a
residence/boathouse on the site. To change this would be a great
financial burden on this property
owner. Mr. Winn expressed concern that
we are losing our waterfront access.
Mr. Harsch stated that “Harbor Club”
is the only parcel that is not zoned MC.
It is zoned Marine Commercial Scenic (MSC).
Mr. Shapack, Attorney, stated that
of the nineteen parcels, only two are commercial. Their proposal would have no impact on neighboring
properties. He stated his client was told
to check with his neighbors at the time he proposed to built his house.
He agreed that a reciprocal
agreement should have been entered into between the Hughes and Liebermans.
Mr. Winn and Mr. Shapack discussed
impacts to properties in the vicinity of Mr. Hughes’ house.
Mr. Kusina asked for comments from the
Commissioners.
Mrs. Whitney asked for Mr. Ward’s
comments. Mr. Ward stated the south
side of Round Lake needs commercial businesses. He suggested that the residential development is the nonconforming
use. He is against changing the zoning.
Mr. Dobulis stated that Round Lake
is unique and he can not support changing the Zoning Ordinance to require a
setback at the water. Mr. Hodgson, Mrs. Sitzma and Mrs. Cross agreed.
Mr. Hess stated the owner of the
Lieberman property has total riparian rights.
He stated he was not in favor of changing the Zoning Ordinance.
Mr. Flanders stated he was on the
Commission when Mr. Hughes’ case was heard.
At that time, the Commission suggested that Mr. Hughes work out
something with the Liebermans. Mr.
Hughes knew he was buying a condo lot prior to building his house.
Mrs. Whitney stated that the Hughes
could have purchased a view corridor, which could have appeared on the
deed. The question is mute.
Mr. Shapeck stated their proposal is
reasonable. He indicated that the
Marine Commercial would not change if their proposal is adopted. The value of the land has precluded this
area from being developed as marine commercial.
Mr. Graham stated the Commission is
being asked to create a
balance between two competing
property rights. The majority of uses
in this district are residential/boathouse uses. To the extent that these uses require direct water access, the
Commission would be correct in choosing that as a policy choice.
Mr. Graham pointed out that the neighboring
buildings would be impacted by the proposed ordinance change. If waterfront setbacks where imposed,
existing structures would become nonconforming structures and subject all the
current regulations governing nonconforming uses.
Mr. Shapack asked if there is a
procedure that would retain the conforming status of the existing
structures. Mr. Graham was unaware of
such a procedure.
Mr. Scott Beatty, Attorney pointed
out that the Commission is here to do what is right for the City and not specifically
for two adjacent property owners. He
requested that the Commission review their policy and the issue of the public
interest, through the planning process. He pointed out that the proposal would
allow for an averaging of the setbacks.
Mr. Dobulis also stated that this
proposal would turn the adjacent properties into nonconforming structures.
Mr. Kusina called for a motion
regarding this matter. No motion was
presented and the issue was not acted upon.
H) NEW BUSINESS
1. Proposed Ordinance amendment to
Section 5.212(3)
2 Proposed Ordinance amendment to
Section 5.256(4)(a)
Mr. Harsch indicated that these two
proposed amendments are a
result of matters that were brought
before the ZBA. He pointed
out that Section 5.212(3) has an internal conflict
which also effects Section 5.6(11).
Motion by Hodgson Supported by Cross
To set a Public Hearing for June 14,
2004 to amend Section
5.212(3), 5.256(4)(a) and 5.6(11).
Ayes: Kusina, Dobulis, Hodgson, Whitney, Sitzma, Hess, Cross and
Flanders
Nays: None
Motion Carried
3. Future Land Use Plan Review
Mr. Harsch presented the existing land use map, as adopted in
the
early 1980’s. He
provided the Commission with a list and graphic interpretation of proposed
changes. Many of these changes in land
use have occurred since the adoption of the current plan.
Mr. Harsch requested that the Commission review the proposed
changes and any potential changes the Commission would like to consider for the
future.
I) FUTURE AGENDA ITEMS
None
J)
ADJOURNMENT
There being no further business, the
Chairman adjourned the meeting at 8:30 P.M.
Respectfully submitted,
Dianne Manore,
Acting for the Secretary