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OSHTEMO CHARTER TOWNSHIP

ZONING BOARD OF APPEALS

February 25, 2003

Agenda

EICHELBERG - FRONTAGE AND AREA VARIANCE - 2632 SOUTH 11TH STREET - (PARCEL NO. 3905-25-335-015)

PESHL - SIGN SETBACK DEVIATION - 8608 WEST MAIN STREET - (PARCEL NO. 3905-16-180-042)

WEST MAIN 2000, LLC - FRONTAGE VARIANCE - 5161 WEST MAIN STREET - (PARCEL NO. 3905-13-430-036)

DISCUSSION ITEM - USE VARIANCES

A meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Tuesday, February 25, 2003, commencing at approximately 3:00 p.m. at the Oshtemo Charter Township Hall.

MEMBERS PRESENT: Millard Loy, Chairperson
Duane McClung
Dave Bushouse
Grace Borgfjord
James Turcott

MEMBERS ABSENT: None

Also present were Jodi Stefforia, Planning Director; Mary Lynn Bugge, Township Planner; Patricia R. Mason, Township Attorney; and four other interested persons.

CALL TO ORDER

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

MINUTES

The Board considered the minutes of the meeting of January 28, 2003. Mr. McClung moved to approve the minutes as submitted, and Ms. Borgfjord seconded the motion. The motion carried unanimously.

EICHELBERG - FRONTAGE AND AREA VARIANCE - 2632 SOUTH 11TH STREET - (PARCEL NO. 3905-25-335-015)

The Board considered the application of Frank Eichelberg, on behalf of WMJ Enterprises, LLC, for a variance from the frontage requirements of Section 66.201 of the Zoning Ordinance to allow a parcel with only 195 feet of frontage to be buildable when the Ordinance requires 200 feet of frontage. The subject property is located at 2632 South 11th Street and is Parcel No. 3905-25-335-015. The subject site is located in the "R-3" Residence District zoning classification.

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

Ms. Bugge clarified that the applicant also requires a dimensional variance since the parcel is only 37,128 square feet and 50,000 square feet is required. Ms. Bugge noted that, sometime after 1965 and before 1984, the subject property had been split from an adjacent property to the north and west, creating two non-conforming parcels. Therefore, neither parcel was considered "grandfathered".

Ms. Bugge stated that other similar applications had been denied based upon the ability to plat so as to make the resulting site conforming. She noted that several non-conforming properties had been platted over the years, and that recently a property on Drake Road and a property on West Michigan Avenue had been platted so as to be in conformance with the Township Land Division Ordinance.

She also reported to the Board that a variance request regarding the vacant property adjacent to the subject property had been denied on May 15, 1989. She provided the minutes to the Board for their consideration.

The applicant was present and stated that the property had been acquired to establish an office. Subsequently, the applicant had been informed by the Township that the site was non-conforming. Mr. Eichelberg stated that it was impossible to buy additional property. He felt that a variance was appropriate because the parcel in question was larger than most other parcels in the area.

In response to questions from the Chairperson, Mr. Eichelberg stated that he had not considered site condominiumizing or platting the property. It was noted that the property could conform to the Ordinance requirements if site condominiumized or platted. The Chairperson expressed concern about setting a precedent when a plat or site condominium was available. He noted that two others had recently completed one-lot-plat processes.

Mr. Bushouse stated that he was in favor of the variance because many other parcels on 11th Street lack sufficient frontage. He therefore felt this parcel was similar to the others in the area. Moreover, he felt that the degree of the variance requested was minimal. In his opinion, it was possible to grant the variance since the applicant could place a two-lot plat on the site. He felt one large parcel was better.

Ms. Bugge stated that she felt, if the variance were denied, it might encourage the applicant and the owner of the adjacent non-conforming property to work together to subdivide the area. Mr. Bushouse expressed that he felt the neighbors should not be forced to work together to find a solution.

After some further discussion, the Board reviewed the non-use variance criteria. As to whether the hardship was unnecessarily burdensome, it was concluded that there were other reasonable options for compliance such as platting or site condominiumizing the site.

As to substantial justice, it was noted that previous similar applications had been denied based upon the "other options" of platting or site condominiumizing.

It was agreed that there were no unique circumstances, and the hardship was self- created. However, the spirit and intent of the Ordinance might be observed in that the proposed parcel would be similar in character to other parcels in the area.

The Township Attorney expressed concern that the Board base granting a variance on the character of other parcels in the area if those parcels were not lawfully non-conforming or "grandfathered".

Ms. Bugge was concerned about setting a precedent which would be applicable throughout the Township.

The Chairperson expressed that, if the square footage of the parcel met the requirements of the Ordinance, he might be more comfortable with the variance.

The applicant commented that the character of the area was further changing because of the increasing traffic on the adjacent street. He had spoken with the Road Commission about the possibility of widening the street.

There was discussion of tabling the item.

Ms. Borgfjord moved to table consideration of the request to March 25, 2003, for purposes of allowing Township Staff to research the status of other similar parcels in the area. Mr. Turcott seconded the motion. The motion carried 4-to-1 with Mr. Bushouse voting in opposition.

PESHL - SIGN SETBACK DEVIATION - 8608 WEST MAIN STREET - (PARCEL NO. 3905-16-180-042)

The Board next considered the application of the Gary Peshl of T-Shirt Printing Plus for a sign setback deviation so as to allow a new freestanding sign at the right-of-way line where a 25-foot setback is required by the Ordinance. The subject property is located at 8608 West Main Street in the "C" Local Business District zoning classification, and is Parcel No. 3905-16-180-042.

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

It was noted that Ms. Borgfjord would be abstaining from discussion or voting on the issuance due to the proximity of her property to the subject site.

Ms. Stefforia noted that the applicant had received special exception use approval in 2001 for a 20,000 square foot mixed-use commercial building. An indoor recreation element made the commercial building a special exception use.

The applicant was seeking to place a new permanent sign at the site at the right-of-way line. The current Ordinance requires a 25-foot setback from the right-of-way line. Under the former provisions of the Ordinance concerning signage, signs were allowed at one-half of the required building setback, i.e., 85 feet from the center line along West Main Street. This usually allowed signs at the right-of-way lines. However, previous requirements also provided for a smaller square footage limit of 60 square feet.

The applicant was concerned that the new showroom under way at Leader's Marine immediately to the east of the site would limit the visibility of his property to westbound motorists in time to enter the driveway.

Ms. Stefforia reviewed the criteria for granting a deviation. As to whether deviation would be materially detrimental to the property owners in the vicinity, Ms. Stefforia felt that, since other property owners in the vicinity had erected signs under the former provisions which allowed signs at the front property line, there would be no detrimental effect.

In considering whether the hardship created by a literal interpretation of the section was due to conditions unique to the building site and does not apply generally to other properties in the Township, Ms. Stefforia noted that the applicant could have established the building 190 feet closer to the street right-of-way and increased its visibility. However, she noted that the Zoning Board of Appeals had granted a deviation in 2002 to Paul Brown to place a sign at the West Main Street right-of-way line. The building and shallow nature of the site predated both the parcel size and sign setback requirements of the Ordinance in the Brown case.

As to granting deviation would be contrary to the general purposes of the section or set an adverse precedent, it was suggested that the Board consider whether other applicants could make a similar case in requesting a setback deviation. It was also noted that the Zoning Board of Appeals might attach additional requirements necessary to carry out the spirit and purpose of the section if deviation were granted.

The applicant was present and expressed that he felt deviation was appropriate, particularly given that traffic on West Main in this area was very fast.

The applicant was questioned concerning the size of the proposed sign, and he stated that a 80 square foot sign would be allowed, and therefore, he was proposing a sign of eight feet in width and ten feet high. The sign would be lighted on both sides. He felt it would look similar to the signs at the Haley's and Leader's sites. In response, it was noted that the Haley's and Leader's signs are 60 square feet.

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

Mr. Turcott had questions regarding the standards for setback of building and parking areas.

The Chairperson expressed that he did not have a problem with granting a deviation so that the sign could be more visible; however, he felt it should be limited in size.

Mr. Bushouse expressed concern that the deviation for the sign to the east had been granted due to the uniqueness of the small parcel and the fact that the sign was blocked by trees. Here, the application was distinguishable since it was a large site with a large building. He was concerned that the purposes of the Ordinance in controlling signage would not be met by granting deviation. However, given the other signs in the vicinity, he might favor deviation so as to place the sign closer to the road if it were "smaller" in area consistent with the two other signs. Mr. Turcott agreed.

Mr. McClung moved to grant a deviation so as to place the freestanding sign at the right-of-way on the condition that the sign be limited to 60 square feet in area. Mr. Bushouse seconded the motion. The motion carried with four members voting in favor and Ms. Borgfjord abstaining.

There was a discussion of the Ordinance provisions concerning how the height of the sign would be measured.

WEST MAIN 2000, LLC - FRONTAGE VARIANCE - 5161 WEST MAIN STREET - (PARCEL NO. 3905-13-430-036)

The Board considered the application of West Main 2000, LLC for a variance from Sections 66.201 and 67.600 so as to allow a land division resulting in a parcel with only 167.65 feet of frontage where the Ordinance requires 180 feet of frontage. The subject parcel is located in the "C-1" Local Business District zoning classification, and is Parcel No. 3905-13-430-036.

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

It was noted that the property is the former West Main Mall site at Drake Road and West Main Street. In 2001, site plan approval had been granted for a Kohl's department store at the site. The applicant was seeking to create a separate tax parcel for the portion of the Mall development leased by Kohl's. The proposed new parcel would be subject to the dimensional criteria of the Zoning Ordinance. The Ordinance allows a 10% reduction in the 200-foot frontage requirement due to the sharing of access. Therefore, the proposed new parcel was required to have 180 feet of frontage on a public street. Given the layout of the Kohl's area, the Panera bread restaurant and parking, as well as the limitations created by the separately-owned Shell parcel, only 167.65 feet of continuous frontage along West Main Street was available for the Kohl's parcel.

In reviewing the criteria for a non-use variance, it was noted that conformance was not unnecessarily burdensome in that the property could be made conforming through the platting or condominium process. As to substantial justice, it was noted that the Zoning Board of Appeals had consistently denied variances for reduced setbacks on properties considered "clean slates" and when the property could be brought into compliance through other means. It was noted that the Zoning Board of Appeals had denied a frontage variance to Target in 1991.

However, in 1995, the Zoning Board of Appeals had granted a variance to allow Gordon Food Service to have a reduced frontage of 158 feet. The Zoning Board of Appeals had determined that the hardship was self-created, and there were no physical conditions limiting compliance, but felt the site was distinguishable in that it was a part of an overall Mall development sharing access through established easements, etc. Therefore, it was felt that the Ordinance would be served since no additional driveways onto Drake Road would be established. The Zoning Board of Appeals had conditioned this variance on no direct access for the Gordon Food Service site to Drake Road and the establishment of an easement for cross-access, as well as no development allowed along Drake Road for 800 feet south of the GFS site.

As to unique physical circumstances, it was felt that the Zoning Board of Appeals might consider the existing Mall service drive and placement of the Shell station to be factors limiting compliance.

Although the hardship was self-created, it was felt that the spirit of the Ordinance might be observed since the subject site as part of the overall Mall development would require no additional driveways.

Tim Timmons was present on behalf of the applicant. He stated that Kohl's lease requires that the applicant make an effort to obtain a separate tax parcel. He indicated that there would be no objection to agreeing to a limitation prohibiting separate access. He stated that there would be no further curb-cuts or development along West Main Street. He felt that the application was consistent with the Gordon's Food Service variance since this was a redevelopment of the Mall and not a "clean slate".

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

After further discussion, Mr. McClung moved to approve the variance conditioned upon no direct access to West Main Street or Drake Road for the Kohl's parcel and subject to the requirements that a recorded easement be established insuring access to the existing Mall Drive. Mr. Turcott seconded the motion, and the motion carried unanimously.

DISCUSSION ITEM - USE VARIANCES

The Board reviewed, with the Township Attorney, the Memorandum concerning use variances dated January 9, 2003. After some discussion, it was the consensus of the Board that use variances not be pursued. Mr. Bushouse commented that he would be interested in information on "use variances" in other townships around the State as well as information from MTA on this issue.

ADJOURNMENT

There being no further business to come before the Board, the meeting was adjourned at 4:38 p.m.

OSHTEMO CHARTER TOWNSHIP
ZONING BOARD OF APPEALS


By:
Millard Loy, Chairperson

By:
Duane McClung

By:
Grace Borgfjord

By:
Dave Bushouse

By:
James Turcott

Minutes Prepared:
February 28, 2003

Minutes Approved:
, 2003