OSHTEMO CHARTER TOWNSHIP

ZONING BOARD OF APPEALS

July 27, 2004

Agenda

STERLING UNIVERSITY CENTER- VARIANCE - LANDSCAPING MATERIALS - 5200 CROYDEN AVENUE- (PARCEL NO. 3905-13-230-013)

SEELYE - SKY KING LLC - SITE PLAN REVIEW - M-43 RETAIL CENTER - 6880 AND 6840 WEST MAIN STREET - (PARCEL NOS. 3905-14-155-030 AND 3905-14-155-040)

BELLE TIRE, INC. - DEVIATION - HEIGHT OF FLAG POLE - 6780 WEST MAIN STREET - (PARCEL NO. 3905-14-155-060)

A regular meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Tuesday, July 27, 2004, commencing at approximately 3:00 p.m. at the Oshtemo Charter Township Hall.

MEMBERS PRESENT: Millard Loy, Chairman
Grace Borgfjord
Duane McClung
James Turcott

MEMBER ABSENT: Dave Bushouse

Also present were Jodi Stefforia, Planning Director, Mary Lynn Bugge, Township Planner; Patricia R. Mason, Township Attorney; and approximately ten 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 June 22, 2004. Mr. Turcott moved to approve the minutes as submitted, and Mr. McClung seconded the motion. The motion carried unanimously.

STERLING UNIVERSITY CENTER- VARIANCE - LANDSCAPING MATERIALS - 5200 CROYDEN AVENUE- (PARCEL NO. 3905-13-230-013)

The Board considered the application of Sterling University Center by Mike Pearson of DMC Builders. The applicant was requesting a variance from Section 75.120(A) to allow use of stone in parking lot islands instead of live plant material. The subject property is located in "R-4" Residence District zoning classification at 5200 Croyden Avenue, and is Parcel No. 3905-13-230-013.

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

Ms. Stefforia stated that the subject site is the new student housing development on Croyden Avenue. On a site inspection, it was observed that rocks had been used in the parking lot islands. Section 75.120(A) requires that portions of the site not devoted to floor area, parking, access ways or pedestrian use shall be appropriately landscaped with live plant material.

Ms. Stefforia stated that the landscaping plan submitted and approved with the site plan did not identify rocks or other ground cover in the islands. Ms. Stefforia noted that the plantings at the perimeter of the site and in the islands satisfy landscaping requirements, but that the rocks did not satisfy the live plant material requirement.

Ms. Stefforia reviewed the criteria for a nonuse variance approval. As to whether conformance was unnecessarily burdensome, Ms. Stefforia pointed out that the islands could be corrected to add some live ground cover and/or grass. Reasonable use of the property would remain if the variance was denied. As to substantial justice, it was noted that this was the first request of the Township for a variance from the live material requirement. As to unique physical circumstances, other than the fact that the islands had already been established with rocks and that the Township did not request greater detail on the landscaping plan regarding the islands, there were no unique conditions. As to whether the hardship was self-created, Ms. Stefforia stated that the Township does share some blame in not requesting more detail in the landscaping plan. However, she pointed out that the provision regarding live material in Section 75.120 was in place at the time the owner prepared the landscaping plan. She noted that the spirit of the Ordinance was to provide relief from monotonous features at the site, such as large parking lots. She suggested that the Board consider that the apartment development had several parking areas that served the individual buildings rather than a large parking lot.

The Chairperson expressed concern that the drawing submitted with the application did not reflect what was actually constructed. Ms. Stefforia said that as-built drawings had not yet been received. Mr. Turcott asked whether the fact that the applicant had not specified what kind of materials would be used would excuse the placement of rock in the islands. The Attorney pointed out that the rock material was not approved in the Township's approval of the site plan since the applicant had not specified the use of rocks in the island areas on that plan.

In response to questions from the Chairperson, Ms. Stefforia stated that the Township would expect stone or mulch around plantings within the island, but not the use of stone in the entire area of the island.

Mike Pearson was present on behalf of the applicant, and stated that rock had been utilized in the island areas because it was expected that residents would walk across the islands. Further, maintenance of the islands would be easier, using rock rather than live plant materials.

The Chairperson asked for public comment, and none was offered. The public hearing was closed.

The Chairperson expressed that he felt it was unfortunate that the island areas had already been established and could understand the maintenance issue. However, he was concerned about setting an undesirable precedent, and he did not feel that there were sufficient unique circumstances to distinguish this property from others within the Township.

Ms. Borgfjord stated that she felt the site was, overall, landscaped very attractively, but agreed that the Ordinance should be complied with. Mr. Turcott noted that other buildings and similar sites were in compliance with Ordinance standards. He felt that the applicant should return to the Board with a proposal to add additional live plantings to the island areas.

The Chairperson stated that he did not support granting a variance and felt that the applicant could supplement the islands with live ground cover.

The Chairperson further stated that he felt uncomfortable with the size of the variance, given that the applicant was estimating at least 50 islands. Mr. Turcott agreed, stating he felt the site should come into compliance with Ordinance standards.

The applicant requested that the item be tabled so that the applicant could submit a proposal regarding ground cover plantings to be established in the islands. Mr. McClung moved to table the item to the meeting of August 24, 2004. Ms. Borgfjord seconded the motion, and the motion carried unanimously.

SEELYE - SKY KING LLC - SITE PLAN REVIEW - M-43 RETAIL CENTER - 6880 AND 6840 WEST MAIN STREET - (PARCEL NOS. 3905-14-155-030 AND 3905-14-155-040)

The Board next considered the application of Mike Seelye on behalf of Sky King, LLC for site plan review of two proposed multi-tenant retail buildings consisting of 6,230 and 6,400 square feet each. The subject properties are located at 6880 and 6840 West Main Street within the "C" Local Business District zoning classification and are Parcel Nos. 3905-14-155-030 and 3905-14-155-040. The Report of the Planning Department is incorporated herein by reference.

Ms. Bugge stated that the subject properties are the two parcels in front of Menards on the north side of West Main Street, south west of 9th Street. The proposed 6,230 square foot multi-tenant retail building was proposed for Parcel B and a 6,400 square foot multi-tenant building, including up to 1,500 square feet for restaurant use, was on the east parcel, i.e., Parcel C. The building front facades would face south toward West Main, and delivery areas were proposed on the north side of each building. She noted that the elevation drawings for Parcel C indicated a future drive-through canopy. However, this canopy was not part of the current review, and it was understood that any future drive-through service element would be subject to review by the Township under special exception use criteria. The proposed development would use the existing entry drives from West Main and an internal service drive within the Menards' development.

Ms. Bugge reviewed the criteria of Section 82.800.

Dave VanderKlock, representing the applicant, stated that he was available for questions.

Mr. Turcott questioned why there was no cross-parking arrangement between the two parcels. The applicant stated that there was sufficient parking on each parcel, and therefore, the applicant saw no reason for cross-parking arrangements.

No public comment was offered, and the public hearing was closed.

Ms. Borgfjord moved to approve the site plan with the following conditions, limitations and notations:

(1) That an ingress/egress easement for the shared driveway be submitted to the Township Staff for review prior to the document being recorded.

(2) That a stop sign be provided on the east driveway where it connects with the Menards' drive aisle.

(3) That direct access to West Main Street is prohibited from Parcel B or C.

(4) That all parking must be in conformance with Section 68 of the Zoning Ordinance, and that the use of each tenant must be reviewed and approved by the Township in consideration of parking requirements.

(5) That an aisle width of 14 feet is satisfactory in conjunction with angled parking as indicated on the site plan, provided that the aisles are signed for one-way traffic and that the Township Fire Department finds site access adequate.

(6) That sidewalk construction plans be submitted to the Township for review and approval.

(7) That all lighting be in compliance with the lighting requirements set forth in Section 78.700. Further, the applicant must provide the Township with a Hold Harmless Agreement for any fixtures located in the sewer easement area.

(8) That pursuant to Section 76.000, a Sign Permit is required before any identification signage may be placed on the subject property.

(9) That greenspace on the east side of Parcel B and on the west side of Parcel C is eliminated to allow for construction of a shared access driveway along the common property line. All required landscaping shall be installed pursuant to the approved site plan before occupancy is permitted, or a performance guarantee consistent with Section 82.950 must be provided.

(10) That site plan approval should be subject to the applicant complying with the requirements of the Township Fire Department pursuant to adopted codes.

(11) That site plan approval should be subject to the Township Engineer finding the proposed site engineering adequate pursuant to the Zoning Ordinance.

(12) That an Earth Change Permit from the Kalamazoo County Drain Commissioner's Office is necessary before earthmoving activities may commence on the site.

(13) That Hazardous Substance Reporting forms are required from each tenant of the site.

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

BELLE TIRE, INC. - DEVIATION - HEIGHT OF FLAG POLE - 6780 WEST MAIN STREET - (PARCEL NO. 3905-14-155-060)

The Board considered the application of Belle Tire, Inc. for a deviation from Section 76.175 A to allow the use of a 60-foot flag pole where a 30-foot pole is permitted by the Ordinance. The subject property is located within the "C" Local Business District zoning classification, at 6780 West Main Street, and is Parcel No. 3905-14-155-060. The Report of the Planning Department is incorporated herein by reference.

Ms. Stefforia pointed out that the approved site plan had indicated a 30-foot high flag pole would be established. However, a 60-foot pole was constructed instead. Ms. Stefforia explained the reasoning of the Planning Commission behind the 30-foot limitation. She reviewed the criteria pertinent to deviation.

Pete Weatherhead was present on behalf of the applicant. He explained that the architect of the project had used a generic site plan but tweaked it for Oshtemo Township. However, Mr. Weatherhead had been unaware that the architect had reduced the flag pole height to 30 feet on the plan. The flag pole normally installed at Belle Tire sites was 60 feet in height.

The applicant suggested that the 60-foot tall pole was within the spirit and intent of the Ordinance in that the American flag established on the pole was not a "sign". He felt that the American flag would meet the spirit and intent of the Ordinance. The flag was intended as a patriotic display rather than a sign at the site and would not distract from the natural beauty of the area. He felt that the American flag would not negatively impact the area. He did not see any arguments for safety in other communities where a flag flew on a 60-foot high pole. He stated that he had received many letters in support of the pole and flag, and he provided same to the Chairperson. He also noted that a letter from the State Commander of the VFW in support of the proposed deviation had been received. There was some discussion of whether the lighting of the flag was 400 watts. Ms. Stefforia stated that this would exceed that allowed by the Ordinance.

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

Mr. McClung commented that he believed that the American Legion, in addition to the VFW, would support the proposal. The Chairperson expressed that he was concerned that this application was different from DeNooyer in that the DeNooyer application admittedly was seeking to establish a flag that could be seen from U.S. 131. The Chairperson felt that the 30-foot pole height was too short for American flags. However, he was concerned about the lighting for the flag and flag pole. He felt that the Township Ordinance needed to be reviewed with regard to the American flag only.

The Township Attorney expressed concern with regard to the application in that the criteria for a deviation had not been satisfied. Therefore, the Attorney felt that, if granted, it would establish a basis for all other commercial users to request a 60-foot pole height. The Attorney was also concerned that First Amendment law as to freedom of speech would not allow the Township to distinguish between the American and other flags with regard to pole height.

There was a discussion of whether the item should be tabled to allow for Planning Commission consideration of a text change. Ms. Borgfjord was concerned about the greater sound emanating from the pole and the look of the height of the pole as the public drove down the road. She stated that the flag pole was so prominent that it was the first thing seen when driving down M-43. The pole and flag could also be seen from the residential area. She felt that the Board should focus on the pole and not the type of flag which was flown from the pole. It was pointed out that the applicant could fly the American flag from a 30-foot pole. Ms. Borgfjord again emphasized that the issue was the height of the pole which allowed for a bigger flag, leading to louder flapping of the flag, higher wattage for lights to illuminate the flag, etc.

Mr. Turcott agreed, stating that the illumination of the flag pole and flag was very bright at night. He concurred that the issue was not about the American flag, but about the height of the pole. He could see no reason why this property was distinguishable so as to allow a height greater than 30 feet. The Township Attorney noted that one of the criteria was whether this property was physically distinguishable as the deviation process would allow for a property with, for example, a physical depression, to receive a higher flag pole.

Mr. McClung stated that he would not be in favor of the deviation from the 30 feet unless it could be limited to the American flag only. The Attorney stated that she was unaware of any law which would allow the Township to provide that the American flag could be flown from a pole of 60 feet in height, but that all other flags were limited to 30 feet in height. However, she stated that this issue could be researched.

The applicant stated that he would be in favor of tabling the item so that the applicant could request a text change.

Mr. Turcott moved to table consideration of the deviation to the meeting of September 28, 2004, so as to allow the applicant an opportunity to apply to the Township for a text change relating to the height of flag poles. Ms. Borgfjord seconded the motion, and the motion carried unanimously.

ADJOURNMENT

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

OSHTEMO CHARTER TOWNSHIP
ZONING BOARD OF APPEALS

By:
Millard Loy, Chairman

By:
Grace Borgfjord

By:
Duane McClung

By:
James Turcott

Minutes Prepared:
August 2, 2004

Minutes Approved:
, 2004