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OSHTEMO CHARTER TOWNSHIP

ZONING BOARD OF APPEALS

August 19, 2002

Agenda

HOWLAND - FRONTAGE AND DEPTH-TO-WIDTH VARIANCE - 9455 WEST L AVENUE- (PARCEL NO. 3905-29-205-011)

GRIMES - EDUCATION AND PROFESSIONAL MEMBERSHIP LICENSING VARIANCE - 6543 STADIUM DRIVE - (PARCEL NO. 3905-35-135-102)

HILL - FRONT SETBACK - 7126, 7142 AND 7156 BATON ROUGE - (PARCEL NOS. 3905-27-485-140, 27-484-152 AND 27-484-162)

KALAMAZOO ELECTRIC - SITE PLAN REVIEW - 6185 WEST KL AVENUE - (PARCEL NO. 3905-23-430-016)

DE NOOYER CHEVROLET - SITE PLAN REVIEW - 5800 STADIUM DRIVE - (PARCEL NO. 3905-25-180-017)

A meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Monday, August 19, 2002, commencing at approximately 3:00 p.m. at the Oshtemo Charter Township Hall.

MEMBERS PRESENT: Grace Borgfjord, Acting Chairperson
Duane McClung
Dave Bushouse

MEMBERS ABSENT: Millard Loy
Stanley Rakowski

Also present were Jodi Stefforia, Planning Director; Mary Lynn Bugge, Township Planner; Robert C. Engels, Township Attorney; and 13 other interested persons.

CALL TO ORDER

The Acting Chairperson called the meeting to order at 3:00 p.m.

MINUTES

The Board considered the minutes of the meeting of August 5, 2002. Mr. McClung moved to approve the minutes as submitted, and Mr. Bushouse seconded the motion. The motion carried unanimously.

Ms. Stefforia informed the applicants who were present that, because only three Board members were in attendance, a motion must receive all members' vote to pass; a 2-to-1 vote would cause a motion to fail. She stated that the applicants could ask to postpone consideration of their application until the September meeting, or they could go forward and then request that their matter be tabled until the September meeting.

HOWLAND - FRONTAGE AND DEPTH-TO-WIDTH VARIANCE - 9455 WEST L AVENUE- (PARCEL NO. 3905-29-205-011).

The Board considered the application of John and Charlene Howland, which had been tabled on May 20, 2002, and on June 17, 2002. They were requesting a variance from the provisions of Section 66.201 to allow a land division that results in a parcel with less than the required 200 feet of frontage and a parcel with a depth greater than four times the width. The subject property is located at 9455 West L Avenue, and is Parcel No. 3905-29-205-011. The property is located in the "AG" Agricultural-District zoning classification.

Ms. Stefforia reported that Mr. and Mrs. Howland asked that their request be withdrawn.

Mr. Bushouse asked if the request was that it be tabled or withdrawn. It was indicated that it was to be withdrawn until such time as the applicants are able to locate the owners of the 66-foot-wide parcel that they wish to acquire.

GRIMES - EDUCATION AND PROFESSIONAL MEMBERSHIP LICENSING VARIANCE - 6543 STADIUM DRIVE - (PARCEL NO. 3905-35-135-102)

The Board considered a variance to allow a massage therapy business to relocate from a grandfathered location in West Main Arcade to a new location in Chime Plaza located at 6543 Stadium Drive. The proposed location is zoned "VC" Village Commercial District and is Parcel No. 3905-35-135-102.

The Report of the Planning and Zoning Department is incorporated herein by reference.

Ms. Stefforia reported that the applicant's business has been located in the West Main Arcade since 1989. The applicant took over the business in July of 1990. Her landlord is asking tenants that are not retail or office to relocate their businesses. The applicant's business is grandfathered in its present location, but will need a variance to allow her massage therapy business to operate in a new location.

In 2000, the Township adopted Adult Regulated Use provisions in the Zoning Ordinance. These provisions direct adult businesses to the Industrial District with spacing requirements from other adult regulated uses, as well as residences, churches and schools. Section 60.750 exempts certain uses from the Ordinance. One of those uses is Professional Massage Therapists if the following criteria are met:

(1) Proof of graduation from a school of massage licensed by the State of Michigan or another state with equivalent standards, consisting of at least 500 classroom hours of instruction and practical training, which include 300 hours of theory and practice of massage therapy, 100 hours of anatomy and physiology, and 100 hours of elective subjects; or proof of completion of a comprehensive course of study in a massage training program at an American community college or university which requires, at a minimum, the training and curriculum above; and

(2) Proof of current professional membership in the American Massage Therapy Association, International Myomassethics Federation, Associated Bodywork and Massage Professionals, or other national massage therapy organization with comparable prerequisites for certification, including liability insurance and testing.

The applicant has produced a certificate dated November, 1984, from Patrick J. O'Connell, R.M.T., which certifies that the applicant satisfactorily completed the course in Swedish Massage and Technique - Anatomy, Physiology, Theory and Practice of Massage Hygiene. It is not clear if that certificate complies with the requirement of proof of graduation from a school of massage, but the applicant does not have proof of current professional membership as required in the Ordinance. It is for that reason that she is seeking a variance from the provisions of Section 60.750d to allow her to relocate her business to Chime Plaza.

Ms. Stefforia reviewed the standards of approval of a nonuse variance set forth in her Report. As to whether conformance was unnecessarily burdensome, she asked that the Board consider that the applicant has produced a certificate that indicates she has completed a course in Swedish Massage and Technique, although the validity of the program and certification had not been confirmed by Township Staff.

As to substantial justice, Ms. Stefforia stated that there have not been any other requests like this request that have been considered by the Zoning Board of Appeals.

As to unique physical circumstances, Ms. Stefforia stated that the applicant is losing her "grandfathered" status due to a business decision of the West Main Arcade management which is forcing her to seek a new location. She also stated that, if a massage business were located within a licensed beauty parlor or barber shop, it would be exempt, and there are several full-service salons in the Township that offer massage in addition to their other services.

As to self-created hardship, Ms. Stefforia stated that the request for the variance was not a result of actions by the applicant regarding the relocation, but rather through the requirement of her landlord. The lack of membership in a national massage therapy organization, however, is at the applicant's discretion.

As to whether the spirit of the Ordinance would be observed, the public health, safety and welfare secured, Ms. Stefforia again stated that the applicant is before the Zoning Board of Appeals as the result of having to relocate. Ms. Stefforia also referred to the handwritten and typed notes from several clients that the applicant submitted with her application packet to demonstrate her commitment to her profession.

The applicant, Sok "Tina" Grimes, was present and told the Board that she had been at her present location for over 12 years and that it was the landlord that was compelling her move. She stated that she was 56 years old and too old to do anything else, and she asked that the Board allow her to move.

The Acting Chairperson asked the applicant if she had signed a new lease, and the applicant told her that she had not.

Mr. Bushouse inquired as to the number of employees, and was told that she had no employees.

The Acting Chairperson asked about her hours of operation and was told that they were from 10 a.m. until 7 p.m. (9 p.m. on occasion) Monday through Saturday.

The Acting Chairperson asked for public comment, and there being none, public comment was closed.

Mr. Bushouse asked if what was being sought was a variance from an adult regulated use, and he was told that it was.

The Acting Chairperson asked if the applicant's business could be done in a beauty shop. The Township Attorney indicated that the letters which the applicant attached to her application indicated that her massage business was more comprehensive than what was allowed in a beauty shop, by Ordinance.

Ms. Stefforia stated that she had driven around Chime Plaza, and she noted that there is a chiropractor who has an office at Chime Plaza who also offers massages.

Mr. Bushouse inquired as to whether or not there had been any Sheriff Department calls concerning the applicant's business, and Ms. Stefforia responded by saying that there may have been before the applicant owned the business, but since then, there have been no Sheriff Department calls. Mr. Bushouse asked if the variance could be limited to her, and he was told that it could.

Mr. Bushouse moved to grant a variance to allow the massage therapy business to relocate from the West Main Arcade to a new location in Chime Plaza, with the variance being limited to the applicant as a sole proprietor. Mr. McClung seconded the motion, and the motion carried unanimously.

HILL - FRONT SETBACK - 7126, 7142 AND 7156 BATON ROUGE - (PARCEL NOS. 3905-27-485-140, 27-484-152 AND 27-484-162)

Ms. Stefforia indicated that Mr. Hill had called to say that he would be late, and he asked that his matter be set back on the Agenda.

KALAMAZOO ELECTRIC - SITE PLAN REVIEW - 6185 WEST KL AVENUE - (PARCEL NO. 3905-23-430-016)

Next, the Board considered a site plan review of a 3,120 square foot building addition for Kalamazoo Electric at 6185 West KL Avenue. The subject property is zoned "I-1" Industrial District and is comprised of Parcel No. 3905-23-430-016.

The Report of the Planning and Zoning Department is incorporated herein by reference.

Ms. Stefforia stated that the applicant proposes to close the existing drive near the west property line and establish a new drive near the east end of the property. This requires a permit from the Kalamazoo County Road Commission. The new drive will not satisfy the spacing requirements from the residence to the east, but the existing drive does not satisfy the separation requirement from the residence to the west. The new drive will not align with the drive opposite KL Avenue, but will satisfy the 150-foot offset required by the Access Management Guidelines. No additional landscaping is necessary, but Ms. Stefforia was concerned about paving the driveway and maintaining the 10-foot offset from the eastern property line when the drive is paved.

Mike Kreps appeared for the applicant. He stated that Kalamazoo Electric is adding personnel and needs additional storage space. The storage space will be used for ladders and other equipment that is used in the electrical business. The lower-level portion (backside) of the building will not be enclosed in the back, and the building will not be heated. The relocation of the driveway is to prevent trucks from driving across the site to reach the new storage building.

Mr. Bushouse asked about parking in the back of the site, and Mr. Kreps stated that it was not for storage of equipment but rather for job-site trailers and similar items. Ms. Stefforia indicated that outdoor storage is acceptable if it does not exceed 100% of the floor area. Mr. Bushouse asked if it did exceed 100%, and if it did exceed 100%, what the Ordinance allows. Mr. Bushouse stated that the Board must be careful about what is being approved. Mr. Kreps stated that there is 5,000 to 6,000 square feet of storage space.

Mr. Bushouse asked if there would be any signage, and Mr. Kreps responded that none had been proposed.

Mr. Bushouse asked if storm water runs to the back of the property, and Mr. Kreps stated that it did.

Mr. Bushouse inquired about the slope of the property, and Mr. Kreps responded that there was a gradual slope to the back. Mr. Kreps stated that the permit has been obtained from the Road Commission.

The Acting Chairperson asked for public comment, and there being none, public comment was closed.

Mr. Bushouse stated that, as long as the Planning Department was comfortable with its review of the project, that everything seemed to be very straightforward. He did inquire about lighting, and Ms. Stefforia stated that lighting was being moved from the existing driveway to the new one and would be reviewed. Mr. Bushouse also asked if the Township Engineer had approved the sloping driveway, and Ms. Stefforia responded that she was waiting to see what action the Board took on the request before involving the Township Engineer.

Mr. McClung moved that the site plan be approved with the following conditions, limitations and notations:

(1) That a driveway permit from the Kalamazoo County Road Commission be obtained for the closure of the existing driveway and the establishment of the new driveway.

(2) That the "service" drive serving the rear storage building not be paved closer than ten feet to the eastern property line.

(3) That parking must comply with the approved site plan and the Zoning Ordinance.

(4) That if outdoor storage is desired in the future, a revised site plan must be provided indicating the location and size of the storage area for administrative review and approval by Township Staff.

(5) That fixture details must be provided for Township Staff review to insure that outdoor lighting will comply with the requirements of Section 78.700 of the Zoning Ordinance.

(6) That a sign permit must be obtained before a wall or freestanding sign is placed upon the property.

(7) That site plan approval is subject to Township Fire Department approval.

(8) That site plan approval is subject to the Township Engineer's review and acceptance that the site engineering is adequate.

Mr. Bushouse seconded the motion, and the motion carried unanimously.

HILL - FRONT SETBACK - 7126, 7142 AND 7156 BATON ROUGE - (PARCEL NOS. 3905-27-485-140, 27-484-152 AND 27-484-162)

Charles Hill arrived at the meeting so the next item considered by the Board was Mr. Hill's application for a variance from the front setback provisions to allow a reduced front yard setback of 30 feet for Lots 35, 58 and 59 of LaSalle Homesites Plat, commonly known as 7126, 7142 and 7156 Baton Rouge. The subject parcels are zoned Agricultural-Rural and are Parcel Nos. 3905-27-485-140, 27-484-152 and 27-484-162.

Ms. Stefforia advised Mr. Hill that there were only three Board members present and that a 2-to-1 vote would result in a motion not passing. She asked Mr. Hill if he wanted to go forward, and he stated that, for the time-being, he would.

Ms. Stefforia stated that the applicant is requesting a variance from the front setback provisions to allow a reduced setback of 30 feet for new homes to be built on three vacant lots in the LaSalle Homesites Plat on Baton Rouge Avenue. Section 64.200 of the Ordinance requires a 40-foot front setback. Her review of the topographic information revealed that the topography is somewhat more pronounced on the three lots when compared to other lots on the north side of Baton Rouge Avenue.

Ms. Stefforia reviewed the standards of approval of a nonuse variance (practical difficulty) set forth in her Report. As to whether conformance is unnecessarily burdensome and if reasonable options for compliance are available, she stated that, with retaining walls and the adding of fill, use of the property could likely be made without a variance.

As to substantial justice, on June 3, 1996, and February 2, 1987, the Zoning Board of Appeals denied variance requests from Steve Visser and Mark Visser for reduced setbacks. Ms. Stefforia did indicate that there had been instances where the Zoning Board of Appeals granted relief to corner properties. She also stated that on June 18, 2001, the Zoning Board of Appeals granted a variance to allow an addition to an existing attached garage that protruded into the front setback on a corner property (Withee request). The variance was based, in part, on topography of the lot and the resulting inability to erect a detached garage elsewhere on the lot. For established corner properties, the Zoning Board of Appeals tends to grant front setback variances to accommodate additions where compliance cannot be achieved. For vacant corner properties, the Zoning Board of Appeals tends to deny variances for reduced front setbacks without unique circumstances.

As to unique physical circumstances, Ms. Stefforia stated that the applicant had indicated in the application that steep terrain is preventing the 40-foot setback requirement from being achieved. She indicated that Township Staff would agree that there is significant topography that must be addressed for the subject lots to be built upon, regardless of where the houses are placed on the lots.

As to self-created hardship, Ms. Stefforia noted that the applicant, as the proprietor of the plat, should have considered shifting the street south to give the lots on the north side of Baton Rouge additional upland, when the plat was designed, to avoid this variance request. There was no mention of topography in the Township Board minutes when the plat was approved.

As to the spirit of the Ordinance being observed, the public health, safety, and welfare secured, and substantial justice done if the variance is granted, Ms. Stefforia suggested consideration to be given to the topography of the lots and the precedents.

The applicant, Charles Hill, stated that he did lay out the plat, and that Baton Rouge was not laid out straight because of the topography of the lots. He said that there is no outlot on the north side because the topography did not allow for an outlot. He said that he could put in retaining walls, but the walls would have to be eight to ten feet high. The 30-foot variance would result in him not needing as much fill or retaining wall and would allow for some backyard. Other lots in the plat that have a similar problem have no backyards.

Mr. Bushouse asked the applicant if, when Phase 1 was platted, there was also going to be a Phase 2, and if he could put in an outlot off the back of Phase 2? Mr. Hill responded that he would have the same drop-off problems with those lots, and Bob Snell, the Township Engineer, did not believe that outlots could be done along the north side. Mr. Bushouse asked if any dirt from the road construction had been dumped at the rear of the lots, and Mr. Hill replied that any available fill was used, and a great deal was used on Lot 35, but there is still a significant drop-off on that lot.

The Acting Chairperson asked for public comment.

Jonathan Richardson is the owner of Lot 36, and he asked if a decision would be made today. Ms. Stefforia indicated to him that Mr. Hill had agreed to go forward, but that there was a possibility that the request could be tabled. She told Mr. Richardson that anything he said would be taken into consideration at any continuing hearing. Mr. Richardson stated that the houses on the south side of Baton Rouge all have at least a 70-foot setback. He believes that the 30-foot setback would put the back of those houses in- line with his house. He did not believe that would be aesthetically pleasing, and would change the original concept of the plat. There were supposed to be large trees and garages that were located back off the street. Other houses have dealt with the topography in a beautiful way.

Mr. Hill explained that the 30-foot setback is from the property line and not 30 feet from the road. Thus, there is only a 10-foot, rather than a 30-foot difference in his request.

Allen Rathburn lives at 7100 Baton Rouge and owns Lots 32, 33 and 34. He was opposed to the setback change. He stated that he has spent thousands of dollars bringing in fill, and while 10 feet doesn't sound like much, it would be very noticeable. He stated that excavation had already been started and comes right up to the property line of Lot 34. He believed that was a dangerous condition, and there should be temporary measures taken to assure public safety. He also believed that granting the variance would open the door for spot variances. He has built on one of his three lots, and if this variance is granted, he will ask for the same variances for his remaining two lots.

David Deno lives at 7121 Baton Rouge. He had several pictures that he showed to the audience and Board members that depicted the 30 and 40-foot positioning of the lot lines. His primary concern was how the granting of the variance would change the appearance of the neighborhood. He did not believe that granting the variance would encourage land use as contemplated by the plat. He also felt that the change may impact land values. He recognized the topographical problems, but thought that maybe the lots should have been platted as unbuildable. He also believed that granting the variance would be hazardous and disruptive to the neighborhood as people would be parking in the street because their driveways would be shorter, and there could be blind spots in the road.

There was no further public discussion, and public comment was closed.

The Acting Chairperson asked about the depth of the subject parcels, and Ms. Stefforia indicated that Lot 35 was 265 feet deep on the east side and 245 feet deep on the west side. The line between Lots 58 and 59 was 208 feet and 167 feet on the west line. Eighty feet is the minimum width with water and sewer.

Mr. Bushouse stated that, based on the engineering firm that designed the plat being the same as the Township Engineer, he understands, if the lots were not buildable, that fact would have been brought to the attention of the Board.

Mr. Bushouse noted that the Vissers were experienced builders, and that both of their requests were denied. The Withee request was granted, but in that case, a garage addition was being added to an existing structure. He also stated that, when the LaSalle Plat was being built, the lots could have been filled at that time. He did not believe that there was any reason for a variance at the present time.

Mr. Bushouse moved to deny the variance. Mr. McClung seconded the motion, and the motion carried unanimously.

DE NOOYER CHEVROLET - SITE PLAN REVIEW - 5800 STADIUM DRIVE - (PARCEL NO. 3905-25-180-017)

The Board next considered a request for a site plan review for 2,512 square feet of additions to the existing showroom building for DeNooyer Chevrolet located at 5800 Stadium Drive. The subject property is zoned "C" Local Business District, and is Parcel No. 3905-25-180-017.

The Report of the Planning and Zoning Department is incorporated herein by reference.

Ms. Bugge stated that there was to be no change to the display area or parking. A two-story addition was contemplated that would increase the height of a portion of the building by 23 feet. The height increase was the only reason that the request was being brought before the Board, as without the height increase, the review could have been done by Township Staff.

The applicant is requesting a 512 square foot addition to the front of the building, south, under the overhang for showroom expansion; two 100 square foot additions, one on the east and one of the west, under the overhang for office use; and a two-story addition containing 1,800 square feet on the northwest side of the showroom portion of the building. Each floor will have 900 square feet, and the total height will be 23 feet. The area will be used for office and meeting space.

Under Section 75, each 1% increase in gross floor area requires the installation of 5% of the landscaping of the entire site. In this case, the 2,512 square foot additions represent a 5% increase in gross building area for the site. Thus, for 25% of the site, landscaping is required. The applicant is also proposing to expand the grass area by the two-story addition and relocate an existing tree in that area.

Ms. Bugge reviewed the provisions of Section 82.800, stating that no change in access, circulation or parking area was proposed or would be permitted. No change in display or service area parking was proposed, and it would not be permitted. The type "A" greenspace shall be planted along the Venture Park Road frontage. A landscaping plan in conformance with the Ordinance shall be submitted for Township Staff review and approval. The site plan approval shall be subject to the applicant satisfying the requirements of the Township Fire Department, pursuant to the adopted codes.

Daryl Rynd was present on behalf of DeNooyer Chevrolet. He stated that a two-story addition was adding 23 feet to the height of the building, which height is now 17 feet. The difference in height is due to tying the addition in architecturally. He stated that the landscaping was limited to the areas north of the southeast drive.

The Acting Chairperson opened this matter to public comment.

Todd Nelson, who owns Spring Arbor Auto Wash, which adjoins the applicant's property, stated that the increase in height would not affect the car wash. He also stated that he liked that landscaping which is going to be done.

There were no further comments, and public comment was closed.

The Acting Chairperson asked if there were any Ordinance height requirements. Ms. Bugge stated that there were not in this District, but any height increase must go before the Board.

Ms. Bugge pointed out for the applicant's information that cars awaiting body repair were being parked on the east side of the building, which was not allowed.

Mr. Bushouse moved to approve the site plan subject to the following:

(1) No change in access, circulation or parking areas.

(2) No change in outdoor display or service area parking.

(3) Type "A" greenspace being planted along the Venture Park Road frontage north of the southeast drive, and a landscaping plan in conformance with the Ordinance being submitted for Township Staff review and approval.

(4) Site plan approval shall be subject to the applicant satisfying the requirements of the Township Fire Department, pursuant to the adopted codes.

Mr. McClung seconded the motion, and upon vote, the motion carried unanimously.

ADJOURNMENT

There being no further business to come before the Board, the meeting was adjourned at 4:20 p.m.

OSHTEMO CHARTER TOWNSHIP
ZONING BOARD OF APPEALS

By:
Grace Borgfjord, Acting Chairperson
By:
Dave Bushouse
By:
Duane McClung

Minutes Prepared:
August 23, 2002
Minutes Approved:
, 2002