OSHTEMO CHARTER TOWNSHIP

ZONING BOARD OF APPEALS MINUTES

August 3, 1998

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Agenda

KECK, EUGENE - VARIANCE FROM 20’ SIDELINE SETBACK RE: ACCESSORY BUILDINGS - 3420 SOUTH 9TH STREET

RETZ, PAUL - VARIANCE FROM 10’ SIDELINE SETBACK RE: ACCESSORY BUILDINGS - 3493 N. VAN KAL AVENUE

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A meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Monday, August 3, 1998, commencing at approximately 3:00 p.m. at the Oshtemo Charter Township Hall, pursuant to notice.

MEMBERS PRESENT:

Thomas Brodasky, Acting Chairperson
David Bushouse
William Saunders
Lara Meeuwse (after 3:08 p.m.)

MEMBER ABSENT:

Brian Dylhoff

Also present were Patricia R. Mason, Township Attorney, Scott Paddock, Ordinance Enforcement Officer, and four (4) other interested persons.

CALL TO ORDER

The Acting Chairperson called the meeting to order at 3:04 p.m.

MINUTES

The Board considered the minutes of the meeting of July 20, 1998. Mr. Saunders moved to approve the minutes as submitted, and Mr. Bushouse seconded the motion. The motion carried unanimously.

KECK, EUGENE - VARIANCE FROM 20’ SIDELINE SETBACK RE: ACCESSORY BUILDINGS - 3420 SOUTH 9TH STREET

The next item was the application of Eugene Keck for variance approval from the nonconforming use regulations established by Section 62.155 and the 20’ sideline setback requirement as it applies to accessory buildings established by Section 64.300 of the Zoning Ordinance. The subject site is located at 3420 South 9th Street and is within the "C" Local Business District zoning classification.

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

The applicant was present, and the Acting Chairperson informed him that the Board decision would have to be unanimous or there would be "no action." The applicant requested that the Zoning Board of Appeals go forward with the item. However, Ms. Meeuwse then entered the meeting.

It was noted that the subject parcel is a rectangular shape with 116’ of frontage on South 9th Street and 123’ of frontage on Chime Street. The parcel was created prior to 1965 and the adoption of the 200’ road frontage and the 50,000 sq. ft. area requirement. Moreover, a single-family residence was built in 1885. A 528 sq. ft. accessory building (detached garage) was built in 1982. A single-family use is not a permitted use in the "C" District, but the use is considered a prior lawful nonconforming use on this parcel. The applicant is requesting a variance from the nonconforming use regulations to allow for the placement of a second accessory building on the site and, for the placement of that building less than 20’ from the sideline as required under the Ordinance.

In response to questioning by the Acting Chairperson, the applicant stated that, if the building were set back 20’, it would place it "over an old drywell." This drywell is not in use, but the applicant said he did not think it would be a good idea to place the building in this location. The applicant was also questioned about possibly moving the location to the west into compliance with Ordinance standards. The applicant felt that moving the proposed site to the west would interfere with mature trees and buried boulders. He stated that there is a grease trap and another old drywell to the south. Moving the building east would be "too close" to the existing home.

The applicant stated that the proposed building would have a roof peak at 12’. Mr. Saunders questioned the applicant with regard to the existing building, which the applicant stated was approximately 22’ x 24’ and used as a garage.

The Acting Chairperson observed that there are three other properties in the area with single-family homes and that all these properties had only one accessory building. There was discussion of the fact that Section 62.155 would allow the applicant to add onto the single-family home and still comply with the provisions of the section. Ms. Meeuwse said she felt that, since this option was available, a second accessory building should not be granted. Further, the Acting Chairperson was concerned that the applicant could place an accessory building in compliance with the setback requirements. The Acting Chairperson did not see how the non-use variance criteria could be satisfied. He was concerned about setting a precedent that would allow all other properties in the area to obtain a variance. In his opinion, that would render the Ordinance provisions useless.

There was no public comment, and the public hearing was closed.

The applicant exited the meeting.

Ms. Meeuwse moved to deny variance from Section 62.155 to allow a second accessory building with the following reasoning:

(1) That conformance was not unnecessarily burdensome in that the applicant had numerous options in order to build on the property in conformance with Ordinance provisions. There is an existing accessory building in use at the site.

(2) That substantial justice would not weigh in favor of granting the variance in that the ZBA had not considered or granted a similar variance previously. Further, other properties in the area, with a single-family use, had only one accessory building. It was felt it would set a precedent which would require variances to be granted to all other such properties.

(3) That there were no unique physical circumstances preventing compliance with Ordinance standards.

(4) That this hardship was self-created in that the proposed second accessory building is at the discretion of the applicant.

(5) That the spirit and intent of the Ordinance would not be observed and the public health, safety and welfare would not be secured if the variance were granted in that the intent of Section 62.155 was to limit nonconforming single-family homes to one accessory building. The applicant had the option of adding to the residence to create an attached garage; this would comply with Ordinance provisions.

The motion was seconded by Mr. Saunders and carried unanimously.

Mr. Bushouse stated that the municipal sanitary sewer had been present in the area for over 20 years and that the property must be hooked up to this sewer line. Therefore, he felt that it was not a good argument that the applicant advanced with regard to the drywell. He felt that the applicant could fill in the drywell and safely build over it.

Ms. Meeuwse moved to deny the setback variance, i.e., variance from Section 64.300, with the following reasoning:

(1) That conformance was not unnecessarily burdensome. The applicant had other options which allowed him to build in compliance with Ordinance standards. It was felt that the applicant could fill in and build over the old drywell which was no longer in use.

(2) That substantial justice would weigh in favor of denying the variance in that other similar past applications had been denied. The Board had granted sideline setback variances in cases where an extension of an existing building line was involved. This was not the case with this application.

(3) That there were no unique physical circumstances justifying the variance.

(4) That the hardship was self-created in that the placement of the building was at the discretion of the applicant.

(5) That the spirit and intent of the Ordinance, and public health, safety and welfare, would be preserved by denying the variance in that the character of the surrounding area and land use in the area would be consistent with the 20’ setback.

Mr. Bushouse expressed that, because this property is within the 9th Street Focus Area, in which there is an emphasis on building closer to the street and property lines, and because the Building Code would allow for placement within 10’ of a property line, he would be voting in opposition to the motion.

Mr. Saunders felt that it should be added in the motion that this property is one of the largest on 9th Street and therefore there is plenty of room on the property in which to satisfy setback requirements.

Mr. Saunders seconded the motion. Upon a vote on the motion, The motion carried 3:1 with Mr. Bushouse voting in opposition.

 

RETZ, PAUL - VARIANCE FROM 10’ SIDELINE SETBACK RE: ACCESSORY BUILDINGS - 3493 N. VAN KAL AVENUE

The next item was the application of Paul Retz for variance approval from the 10’ sideline setback requirement as it applies to accessory buildings established by Section 64.200 of the Zoning Ordinance. The subject site is located at 3493 N. Van Kal Avenue and is within the "AG"-Rural District zoning classification. The item had been tabled from the meeting of July 20, 1998.

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

There was discussion of the information provided by the Planning and Zoning Department. The ZBA noted that the parcel adjacent to the property at issue is a large parcel over which there is a Consumers Energy easement running at an angle. This creates a small triangular-shaped area immediately adjacent to the subject property between it and the Consumers Energy right-of-way. Mr. Bushouse stated he was aware that this area between the subject property and the right-of-way is "swampy."

The applicant was questioned with regard to the proposed pole building, and he stated that it would be 19’ high. It was proposed that it be set back 5’.

Board members noted that variance has been granted in the past where a property abutted a right-of-way. In this case, the property did not immediately abut the right-of-way, but the reasoning behind such variances would be applicable if the property between the subject property and the right-of-way was not buildable.

After review, it was the consensus of the Board that there was approximately 50-75’ between the subject property and the right-of-way. Further, it was agreed that this area was swampy or wetlands. It was noted that there are power lines across the Consumers Energy right-of-way.

Ms. Meeuwse inquired into the proposed use of the pole building, and the applicant indicated it would be "parking and storage."

The applicant claimed that he had spoken with the neighboring property owner, an Emil Popke, Jr., and that Mr. Popke indicated he would not sell the adjacent property but would not object to a 5’ setback.

A Mr. Baden, a neighbor of the subject property, indicated he had no objection.

The Acting Chairperson sought further public comment, and none was offered. The public hearing was closed.

The Acting Chairperson stated he was inclined to grant the variance in that it was very unlikely that anything would be built in the area adjacent to the property between it and the right-of-way. Mr. Saunders agreed, stating that it was further unlikely because of the swampy, wetlands nature of the property. Ms. Meeuwse and Mr. Bushouse agreed.

Mr. Saunders moved to grant variance from the provisions of Section 64.200 to allow a 5’ setback for the proposed accessory building with the following reasoning:

(1) That conformance was not unnecessarily burdensome in that the applicant had other options for the placement of the pole building. However, these were somewhat inhibited by the topography and trees on his property.

(2) That substantial justice would weigh in favor of granting the variance in that the Board had granted variance previously where a property abutted a utility right-of-way. It was reasoned that, due to the fact that it was unlikely there would be building on such a right-of-way, the right-of-way would serve the function of the setback. It was felt that this situation is analogous in that there was only 50-75’ between the subject site and the right-of-way in that and because the area and in question is swampy.

(3) That there are no unique physical circumstances preventing compliance with the Ordinance.

(4) That the hardship is self-created.

(5) That, however, it was felt that the spirit and intent of the Ordinance would be served and the public health, safety and welfare secured if the variance were granted, given the unlikeliness of building on the adjacent property due to its narrow configuration and it swampy character.

Ms. Meeuwse seconded the motion, and the motion carried unanimously.

ADJOURNMENT

There being no further business to come before the Board, the meeting was adjourned at 4:00 p.m.

Minutes Approved: