OSHTEMO CHARTER TOWNSHIP

ZONING BOARD OF APPEALS MINUTES

December 7, 1998

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Agenda

HALLI’S AUTO BODY - SITE PLAN REVIEW - PROPOSED 1,350 SQ. FT. ADDITION TO EXISTING FACILITY - 8688 WEST MAIN

WESTWOOD OFFICE PARK - BUILDING 5 - SITE PLAN REVIEW - PROPOSED 9,576 SQ. FT. OFFICE BUILDING - 5320 HOLIDAY TERRACE

ALZHEIMERS ASSOCIATION - VARIANCE REQUEST TO ALLOW EXPANSION OF A NONCONFORMING SIGN - 2727 S. 11TH STREET

WALLY’S SUB SHOP - INTERPRETATION REQUEST - SUBMISSION OF ADDITIONAL INFORMATION AND ACCESS MANAGEMENT GUIDELINES DEVIATION/VARIANCE REQUEST

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A meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Monday, December 7, 1998, commencing at approximately 3:00 p.m. at the Oshtemo Charter Township Hall, pursuant to notice.

MEMBERS PRESENT:

Brian Dylhoff, Chairperson
Thomas Brodasky
David Bushouse
William Saunders
Lara Meeuwse

MEMBERS ABSENT: None

Also present were Jodi Stefforia, Township Planning and Zoning Department, Patricia R. Mason, Township Attorney, and eleven (11) other interested persons.

CALL TO ORDER

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

MINUTES

The Board considered the minutes of the meeting of November 30, 1998. The changes suggested by Ms. Stefforia were noted. Mr. Brodasky moved to approve the minutes as amended, and Mr. Saunders seconded the motion. The motion carried unanimously.

HALLI’S AUTO BODY - SITE PLAN REVIEW - PROPOSED 1,350 SQ. FT. ADDITION TO EXISTING FACILITY - 8688 WEST MAIN

The next item was the application for site plan approval of a proposed 1,350 sq. ft. addition to the existing Halli’s Autocare facility at 8688 West Main Street. MapThe report of the Planning and Zoning Department is incorporated herein by reference.

Ms. Stefforia noted that, in the 1994 approval of a site plan amendment, there had been concern over the existence of overnight parking at the site. She noted that no complaints had been received regarding the overnight parking since its approval. The proposed amendment would allow a 1,350 sq. ft. building expansion and the addition of four parking spaces adjacent to the new area. Ms. Stefforia further noted that there was concern by the Fire Department regarding the ability to protect the subject property, given the absence of a public water supply. This issue was under discussion among the property owners in this vicinity, and the extension of public water to the area is being considered studied. The applicant was aware that the Fire Department was unlikely to approve the proposed amendment addition unless and until public water was available.

Art Bates, architect for the project, was present, along with the owners.

The Chairperson questioned the applicant with regard to how many bays would be added with the proposed building addition. Mr. Bates stated that two bays would be added and that possibly one more employee would be working at the site. In response to questioning by Mr. Brodasky, it was indicated that no sprinkling system would be present in the building. Ms. Meeuwse inquired as to the hours of operation, and the owner responded that they were open 8:00 a.m. to 6:00 p.m. Monday through Friday.

Ms. Stefforia questioned the applicant with regard to the proposed screening. It was noted that evergreens would be planted "behind the new addition" as indicated on the site plan. Ms. Stefforia pointed out that there was no environmental permits checklist or hazardous substance reporting form on file with regard to the site. The architect for the project said that these would be provided.

Ms. Meeuwse reported that she had visited the site on Sunday and noted that 14 cars were parked outside. Only 12 overnight parking spaces had been previously approved.

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

Mr. Saunders questioned the applicant as to whether additional overnight parking was being requested. It was noted that the original overnight parking approved for the site was based upon computation of the amount of overnight parking needed "per bay." Therefore, since additional bays were being added, Board members agreed that additional overnight parking might be in order. The architect for the project proposed that the 12 spaces previously approved at the front of the site be retained and the additional four to be added at the back be designated for overnight parking. The Chairperson stated he felt that this proposal was reasonable, and Mr. Bushouse agreed, stating that he felt it was in character with the neighborhood. Board members agreed that signage should be placed at the approved spaces to indicate overnight parking was permitted.

The Board returned to a discussion of screening and landscaping, and it was felt that there was no need for an additional landscaping plan.

Mr. Saunders moved to approve the site plan amendment with the following conditions, limitations and notations:

(1) That no additional access points were being requested as part of the proposed building expansion. Further, the area previously set aside for a potential shared drive with the parcel to the east would be maintained with the proposal.

(2) That the western portion of the property would remain in a natural state and undisturbed. The site plan showing the planting of evergreen trees along the western side of the building, both the existing and proposed area, was acceptable.

(3) That 16 overnight parking spaces (located on the north and east portions of the parking area) are designated as overnight parking and must be identified with signage.

(4) That approval was subject to the review and approval of the Township Fire Department. It was acknowledged that Fire Department approval was not likely until the subject site could be served by public water.

(5) That approval was subject to the review and approval of the Township Engineer; it was recognized the applicant must comply with stormwater management criteria of the Zoning Ordinance.

(6) That approval was subject to the applicant submitting a completed environmental permits checklist and hazardous substance reporting form to the Township prior to issuance of a building permit.

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

 

WESTWOOD OFFICE PARK - BUILDING 5 - SITE PLAN REVIEW - PROPOSED 9,576 SQ. FT. OFFICE BUILDING - 5320 HOLIDAY TERRACE

The next item was the application for site plan review of a proposed 9,576 sq. ft. office building in the Westwood Office Park at 5320 Holiday Terrace. Map

The report of the Planning and Zoning Department is incorporated herein by reference. It was noted that this building (and the site plan therefor) had been considered and approved approximately three times by the Zoning Board of Appeals. The latest time was in 1997. However, the approval had expired. There were no changes in the proposed plan since the last review and approval by the Board.

Steve Hasseuvoort, architect for the project, was present on behalf of the applicant. In response to questioning by the Chairperson, the applicant indicated that the intent was to go forward with the project now.

There was a discussion of the existing dumpsters and whether they were in the approved locations. Ms. Stefforia noted this issue and indicated she would look into it for purposes of enforcement.

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

Mr. Brodasky moved to approve the proposed project with the following conditions, limitations and notations:

(1) That no changes to the existing access arrangement were proposed.

(2) That the proposed parking lot layout is satisfactory. All parking was required to comply with the Ordinance dimensional standards at 10’ x 20’. Parking lot aisle width would remain at 24’.

(3) That all barrier-free parking be subject to ADA and Michigan Barrier-Free Guidelines and is to be designated by signage and pavement logo.

(4) That the existing and proposed dumpster/enclosure arrangements be detailed for review and approval by Township staff.

(5) That existing building/site lighting be detailed on the site plan. The proposed lighting is subject to compliance with Section 78.700, and a plan must be submitted for review and approval to the Township consistent with the standards of Section 78.720(g).

(6) That signage must comply with Section 76.000 and be reviewed and approved through the permit process.

(7) That further screening is not required.

(8) It was recognized that the building #5 lawn area would be used largely for stormwater retention. Building perimeter landscaping should be compatible with the existing on-site landscaping.

(9) That approval was subject to the review and approval of the Township Fire Department and Township Engineer.

(10) That an environmental permits checklist and hazardous substance reporting form had been completed and were on file with the Township.

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

 

ALZHEIMERS ASSOCIATION - VARIANCE REQUEST TO ALLOW EXPANSION OF A NONCONFORMING SIGN - 2727 S. 11TH STREET

The Board next considered the application of the Alzheimers Association for variance from Section 76.115 of the Zoning Ordinance to allow the expansion of a nonconforming sign at 2727 S. 11th Street. Map

The report of the Planning and Zoning Department is incorporated herein by reference. It was noted that the current sign is located approximately 8’ from the edge of 11th Street right-of-way and that the Zoning Ordinance requires a setback of at least one-half of the required building setback, which in this district is 40’. The current sign base was constructed in 1978. The applicant proposed adding a new sign face mounting to the existing base. The proposal would increase the sign area to 11 sq. ft. This would add to the visibility of the sign face. The structure of the sign base would remain unchanged. Due to existing vegetation on the subject and neighboring propertyies, the visibility of the sign for northbound traffic on 11th Street is limited. If the applicant were to comply with Ordinance standards as to the placement of the sign, the applicant would be allowed 30 sq. ft. and a height of 8 feet.

David Lewis was present on behalf of the applicant. In response to questioning by Mr. Brodasky, the applicant stated that the variance would improve sign visibility. The applicant indicated that the sign would continue to be illuminated the same by ground lighting as is currently used.

Mr. Saunders observed that the proposed sign would be only about one-third of the sign size allowed. Further, he felt it was significant that the existing base of the sign would not be altered or changed. Ms. Meeuwse and the Chairperson both observed that other signs in the area are "closer" to the road right-of-way than this sign.

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

The Board considered the nonuse variance criteria. As to whether conformance with the Ordinance was unnecessarily burdensome, Board members concurred that the structure had been on the property for about 20 years and that it was significant that it was not being altered or changed. The new sign face would be less than half of the sign size allowed. Further, visibility would be problematic if the sign were set back in compliance with Ordinance standards.

As to substantial justice, Board members agreed that substantial justice would weigh in favor of granting the variance in that the size or sign area was smaller than that allowed for the property. A sign moved into compliance with setback provisions could be 8’ tall and 30 sq. ft. in size. The proposed sign and its placement were in keeping with other signage in the area. It was felt that the sign as proposed was more aesthetically pleasing.

It was recognized that the proposed hardship was self-created. However, it was felt that the spirit and intent of the Ordinance would be served by granting the variance in that the sign as proposed would be in character with the area. Further, there were visibility problems due to existing vegetation.

Mr. Brodasky moved to approve the variance, and Mr. Saunders seconded the motion based upon the previous reasoning. The motion carried unanimously.

 

WALLY’S SUB SHOP - INTERPRETATION REQUEST - SUBMISSION OF ADDITIONAL INFORMATION AND ACCESS MANAGEMENT GUIDELINES DEVIATION/VARIANCE REQUEST

The Board next considered the application of Wally’s Sub Shop for interpretation, i.e., the opportunity to submit additional information regarding the previous interpretation made by the Zoning Board of Appeals. It was noted that, on July 13, 1998, the Zoning Board of Appeals had interpreted that sealcoating is not the equivalent of maintenance but alteration of the parking lot and therefore requires that the nonconforming parking lot be brought into compliance with current provisions of the Ordinance. The applicant and his attorney had requested the opportunity to present additional information regarding this matter. In addition, if necessary, the applicant requests deviation pursuant to Section 67.700 of the Zoning Ordinance from the site design provisions of the Access Management Plan for two aspects of the existing parking spaces in front of the subject building, one to allow a reduced driveway throat length of 20’ where 50’ is identified in the Ordinance and Access Management Plan, and two, deviation to allow a reduced aisle width. Further, the applicant requested a variance from Section 68.100 of the Zoning Ordinance to allow the retention of a parking space within the Kalamazoo County Road Commission right-of-way at the northwest corner of the subject property.

The Township Attorney described the background of the items with regard to the applicant’s appeal to Circuit Court and the remand from the Circuit Court to the Zoning Board of Appeals for supplementation of the record.

Dennis McCune was present on behalf of the applicant. He stated that in July of 1998 he had indicated that Michigan law would provide that there was no expansion or alteration at the Wally’s Sub Shop site which would trigger the loss of the nonconforming status of the parking lot. He recognized that the Township Attorney might advise differently. However, he felt that it was important that his memorandum setting forth his legal position be a part of the record. Reference was made to the memorandum received from Mr. McCune, which is incorporated herein by reference. He believed that an appropriate interpretation of the law as it pertains to this set of facts would indicate that the parking lot remains a prior lawful nonconforming use. As to the deviation, he emphasized the reference in the Planning and Zoning report to page 71 of the Access Management Plan, which provided that access improvements to existing land uses should not be required unless a hazardous situation existed or there were obvious liabilities present. He stated that, in his opinion, no hazardous situation exists here and, since the business had been in existence for over 20 years at the site, no change should be required.

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

The Chairperson noted that the applicant had been before the Board in December of 1997 concerning a change in use at the subject site and expansion of the parking area, as well as sealcoating of the parking lot. At that time, the proposed site plan amendment was approved with the condition that the applicant present a parking plan which was in compliance with Ordinance provisions. Instead, the applicant went ahead and striped the sealcoated parking lot in violation of Ordinance provisions.

Mr. Brodasky was disturbed that the applicant had agreed to take the parking space out of the right-of-way but then had striped the space anyway. Mr. McCune acknowledged this but emphasized that his information was that there had been no traffic accidents attributable to the current configuration of the parking lot and access point.

Reference was made to the December 7, 1998, letter of the Kalamazoo County Road Commission, which informed the Township that they would not consent to the placement of the parking space in the Road Commission right-of-way. Additionally, David Krueger, of Kalamazoo Area Transportation Study (KATS) was present. He made reference to his letter of December 7, 1998, which is incorporated herein by reference. He recognized that, although the drive and parking lot configuration had been in existence for a number of years, the present configuration was a potential traffic hazard. Focusing on the five spaces in front of the building, Mr. Krueger noted that cars backing from the western three spaces would maneuver "into the right-of-way." Further, backing from these spaces would delay entering traffic, potentially increasing the possibility of a rear-end collision on Stadium Drive. There was also the possibility of collision between an entering and backing vehicle. He was also concerned that vehicles would have to slow significantly to make a turn into the site from Stadium Drive and that this would present more potential for an accident. In his opinion, there was no difference if the drive were a "right-in, right-out." He felt that entry into the site was the traffic movement which caused the most conflict and possibility of accident. However, he also felt that it would do no good to make the access point "exit only" in that one would not want to encourage left turns from that access point. In his opinion, compromise solution might be found in removing the three westerly-most spaces along the frontage. He felt that these three spaces caused the most "conflict."

Mr. Saunders asked whether angling of the parking spaces would improve the situation. Mr. Krueger stated that angling the spaces would actually make the traffic hazard worse.

Mr. Bushouse wondered whether the Road Commission should have added a deceleration lane to this access point at the time of road widening. Mr. Krueger stated that the access point is too close to the intersection to make this possible; there was not enough room for the proper taper. Clarifying his opinion, Mr. Krueger stated that the two spaces to the far east in front of the building did not present the same hazard as the westerly three.

Ms. Meeuwse observed that she had visited the site the previous day and had "tried to make a right turn in." She stated that it was fortunate that there were no cars backing from these spaces; otherwise, she felt she would have been "rear-ended" on Stadium Drive.

The Chairperson called for public comment, and Fire Department Fire Chief Ken Howe noted that the Fire Department would not require a fire lane in front of the building due to its proximity to Stadium Drive and 9th Street.

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

Mr. McCune emphasized he felt that the primary issue was whether sealcoating constituted a change/alteration rather than maintenance. The Township Attorney noted she felt that this was true except that the sealcoating issue was to be considered in context with the site plan review request of the applicant, i.e., the proposed change in use and expansion of the parking lot.

Mr. McCune stated that the applicant was willing to eliminate the two westerly-most parking spaces in front of the building. Further, the parking space in the right-of-way would be removed. Mr. McCune stated the applicant felt that if there were no parking at all in the front of the building it would look like the business was not open. Mr. Brodasky and Ms. Meeuwse rejected this argument, noting that the business had a neon sign and a black-and-white sign indicating whether they were open or closed.

Mr. Krueger stated that he felt it would significantly reduce the hazard if the two westerly-most spaces were eliminated. He felt this would be a significant improvement and would remove most of the conflict since it was these two spaces which were in direct line with the access point.

Mr. McCune stated that the applicant was also willing to cross-hatch with diagonal striping the spaces eliminated to the west part of the front of the building and place signage indicating no parking in this area. Mr. Krueger felt that this would be very helpful.

The Chairperson stated that, in his opinion, there was a problem with any spaces being allowed in front of the building. He felt that the Township should be trying to direct parking to the back of the business. Mr. Saunders disagreed, stating he felt that, unless there was a hazard, some parking in the front should be allowed.

Returning again to the issue of interpretation, the Township Attorney noted that there was no case law specifically speaking to the issue of sealcoating of a parking lot. However, she noted that one goal of zoning is to eventually eliminate nonconforming uses. The Township Attorney referenced the case of Cole v City of Battle Creek, 298 Mich 98 (1944), in which a nonconforming building had been demolished and replaced with a building of the same or smaller size. The Supreme Court had noted that the size was not increased and that it was of the same essential nature but felt that the nonconforming use status was lost because the replacement of the building would permit an indefinite continuance of a nonconforming use by periodic rebuilding. The Supreme Court felt that this would be contrary to the goal of gradual elimination of nonconforming use. The Township Attorney felt that the sealcoating of a parking lot was a similar or analogous situation. Resealcoating of a parking lot created essentially a "blank slate" on which any parking configuration could be "constructed." To allow resealcoating without requiring compliance with Ordinance provisions would allow indefinite continuance of a nonconforming use by periodic resealcoating.

Mr. Saunders moved to reaffirm the Board’s previous interpretation as to sealcoating triggering loss of nonconforming use status. The motion was based on the reasons previously articulated by the Board in past decisions and upon the Township Attorney’s opinion. Mr. Brodasky seconded the motion, and the motion carried 4:1 with Mr. Bushouse voting in opposition.

It was noted that the applicant’s request for variance to allow off-site parking, i.e., parking within the Road Commission right-of-way, had been withdrawn. As to deviation, Mr. Saunders moved to grant deviation, allowing the retention of three spaces and the elimination of the two westerly-most parking spaces in front of the building, based upon the opinion of KATS with regard to the matter. Mr. Saunders particularly referenced Mr. Krueger’s opinion that elimination of the two westerly spaces would eliminate a significant part of the hazard at this site. Mr. Saunders also referenced the length of time the business has been at the location and the provision of page 71 of the Access Management Plan. The deviation was conditioned upon pavement designation (through cross-hatch yellow striping) and signage indicating no parking in the area in front of the building to the west of the three remaining spaces. It was further required that the plan for pavement marking and signage be submitted to Township staff for review and approval. Mr. Bushouse seconded the motion. The motion was defeated on a vote of 2:3 with Mr. Brodasky, Ms. Meeuwse and the Chairperson voting in opposition.

Ms. Meeuwse moved to grant the deviation on the same conditions articulated in Mr. Saunders’ motion but with the further requirement that the three westerly-most spaces be eliminated, and only two remain. Mr. Saunders stated he felt that this would create a greater hardship on the applicant than was necessary. This motion was defeated 2:3 with the Chairperson, Mr. Saunders and Mr. Bushouse voting in opposition.

Ms. Meeuwse moved to deny the deviation, requiring the removal of all five spaces. There was no second for this motion, and it died for lack of support. Ms. Meeuwse withdrew her motion.

Mr. Krueger stated that he felt strongly, prior to the meeting, about the elimination of the three westerly-most spaces, but that his opinion had been swayed by the proposal of the applicant to cross-hatch and sign, indicating no parking, which Mr. Krueger felt would go a long way to discouraging parking in this area. He felt that the two westerly-most spaces were the most hazardous in that they directly line up with the access point. In his opinion, the combination of the elimination of the two westerly spaces and the pavement markings and signage which would indicate no parking in the remaining area would make the proposal to eliminate two spaces and retain three spaces acceptable. He felt that this would eliminate the majority of the hazard.

In view of this information, Mr. Saunders again moved the adoption of his previous motion. Mr. Bushouse seconded the motion. The motion carried 3:2 with Ms. Meeuwse and the Chairperson voting in opposition.

OTHER BUSINESS

There was discussion of the upcoming agenda for the next meeting.

ADJOURNMENT

There being no further business to come before the Board, the meeting was adjourned at 5:20 p.m.

Minutes Prepared:
December 8, 1998

Minutes Approved: