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OSHTEMO CHARTER TOWNSHIP

ZONING BOARD OF APPEALS

June 24, 2003

Agenda

HAWKINS - SETBACK VARIANCE - 6345 MAPLE LEAF - (PARCEL NO. 3905-11-253-060)

CRYSTAL CAR WASH - AREA VARIANCE - 6775 WEST MAIN STREET - (PARCEL NO. 3905-14-305-016)

CRYSTAL CAR WASH - SITE PLAN REVIEW - 6775 WEST MAIN STREET - (PARCEL NO. 3905-14-305-016)

ADAM'S OUTDOOR ADVERTISING - INTERPRETATION OF NONCONFORMING USE STATUS / ALTERATION - 5101 STADIUM DRIVE - (PARCEL NO. 3905-25-285-011)

ADAM'S OUTDOOR ADVERTISING - VARIANCE - ALTERATION TO NONCONFORMING BILLBOARD - 5101 STADIUM DRIVE - (PARCEL NO. 3905-25-285-011)

DE FOREST - ACCESSORY BUILDING REVIEW - 10463 WEST "H" AVENUE - (PARCEL NO. 3905-07-130-030)

A meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Tuesday, June 24, 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 six 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 10, 2003. Mr. Turcott moved to approve the minutes as submitted, and Mr. McClung seconded the motion. The motion carried unanimously.

DE FOREST - ACCESSORY BUILDING REVIEW - 10463 WEST "H" AVENUE - (PARCEL NO. 3905-07-130-030)

Since the applicant was not present, the Board decided to table the item.

HAWKINS - SETBACK VARIANCE - 6345 MAPLE LEAF - (PARCEL NO. 3905-11-253-060)

The Board considered the application of Gerald Hawkins for a variance from the provisions of Section 64.200 to allow a reduced setback for an accessory building (shed) in the rear yard. The subject property is located at 6345 Maple Leaf in the "R-2" Residence District and is Parcel No. 3905-11-253-060.

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

Ms. Bugge stated that the applicant was seeking relief from the ZBA so as to allow his existing 120 square foot shed to remain as located in the back yard. The building is approximately two feet from the rear property line and six inches from the east property line. Ms. Bugge pointed out that the property is a rectangular lot approximately 110 feet wide to its full depth. She made reference to the applicant's sketch and letter attached to the Report. Ms. Bugge stated that the Township had received a complaint that the shed was too close to the property line.

She reviewed the criteria for a nonuse variance. As to whether conformance was unnecessarily burdensome, Ms. Bugge stated that the shed could be moved to come into compliance with Ordinance standards. Further, reasonable use of the property as a single-family residence would continue if the variance was denied. However, it was pointed out that some trees might need to be removed if the shed was relocated.

Concerning substantial justice, Ms. Bugge reviewed prior decisions of the Board concerning residential accessory buildings. The most recent decision in the Mattson case on February 11, 2002, had been a denial.

Ms. Bugge could find no physical limitations or conditions which prevented compliance with the Ordinance. She noted that the shed was currently placed on a slope, and that there were places on the property "more level". Ms. Bugge was of the opinion that the hardship was self-created in that the shed had been placed at the discretion of the applicant.

The applicant was present, stating that the purpose of the shed was to store yard equipment. He wanted to get this kind of equipment out of his garage. In preparing to build, he had talked with some neighbors who indicated that he did not need a building permit. He thought he was placing his shed similarly to the position other sheds were placed on neighboring properties. He stated that the construction made the shed appear more like a "doll house" than a barn. He felt it was significant that no complaint had been received from any neighbor during the 2 weeks that it took to build the shed. He felt that the variance should be granted since, if the shed were moved, several trees would have to be eliminated. In response to questioning, the applicant indicated that he had begun construction approximately four weeks ago.

The Chairperson asked for public comment, and Connie Kamerling stated that, in her opinion, the building was too close to her home and deck. She estimated the distance at about 25 feet. She felt that the Township's Ordinances are in place to protect property rights of all citizens, and in her opinion, the Township should uphold the setback requirement.

Ms. Borgfjord questioned whether any plat restrictions limited placement of the building, and the applicant indicated that he did not know of any.

Jim Holm stated that he had redone his deck two years before, and at that time, he had been careful to keep within the setback. He stated that he had not been consulted by the applicant prior to the building of the shed. Further, Mr. Holm stated that, when he bought his house, he had to sign a paper stating that he knew of the Township's setback requirements. He felt that the applicant had probably also seen such paperwork.

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

The Chairperson pointed out that the Township, in the past, had tried to adhere to setback restrictions. Mr. McClung commented that he saw no basis to grant the variance.

Mr. Bushouse stated that the Township had, in newsletters, tried to alert residents to the need to comply with Township Ordinance regulations even where no building permit was required. In his opinion, the shed in question could be moved. He felt that the applicant should adhere to setbacks as required by the Ordinance. In his opinion, the criteria for a nonuse variance did not support granting a variance here.

Ms. Borgfjord commented that the Ordinance standards were "there for a reason". Further, she was concerned about the huge degree of the variance requested. Mr. Turcott agreed, stating that he felt that the shed needed to come into compliance with Ordinance standards. The Chairperson stated that he felt that the Township should not base a decision on the "other nonconforming sheds in the area". He also did not see a basis for a variance.

Ms. Borgfjord moved to deny a variance, finding that the criteria for a nonuse variance had not been satisfied. Mr. Turcott seconded the motion, and the motion carried unanimously.

CRYSTAL CAR WASH - AREA VARIANCE - 6775 WEST MAIN STREET - (PARCEL NO. 3905-14-305-016)

Ms. Stefforia stated that this item, which had been tabled from the meeting of May 27, 2003, in which the applicant requested a variance from the provisions of Section 66.201 to allow a land division, had been withdrawn by letter from the applicant's attorney dated June 3, 2003.

CRYSTAL CAR WASH - SITE PLAN REVIEW - 6775 WEST MAIN STREET - (PARCEL NO. 3905-14-305-016)

The Board considered the application of Crystal Car Wash (Shashin Kothawala) for a site plan review of an addition to an existing automobile detail shop for retail lease space. The subject property is located in the "C" Local Business District at 6775 West Main Street, and is Parcel No. 3905-14-305-016.

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

Ms. Stefforia stated that the applicant was proposing a 4,300 square foot addition to the existing building at the site. The total building would be 6,118 square feet in area after the addition. Ms. Stefforia pointed out that there was an easement for off-site drainage which predated Wal-Mart's acquisition of the storage facility upon which the Crystal Car Wash was directing its stormwater. It was her understanding that a revision to the existing easement was being negotiated with Wal-Mart. Ms. Stefforia felt that a copy of the revised drainage agreement should be required of the applicant prior to issuance of a building permit. Further, the applicant had indicated that it was negotiating a cross-access easement and cross-parking arrangement. Although progress had been made, all the necessary documents had not yet been executed. However, Ms. Stefforia felt that no cross-access or parking agreement was needed to satisfy Zoning Ordinance provisions concerning the proposed application.

As to access, two of the existing three drives at the site would remain. One would be closed. The applicant had previously proposed parking in the area of the drive to be closed. The proposed site plan now showed this area as landscaped, which was consistent with the Zoning Board of Appeals' previous discussions on the site plan. It was pointed out that each tenant at the site would be subject to administrative review by the Township Staff to assure that adequate parking continued to exist. Ms. Stefforia again noted that she was comfortable with the amount of parking currently proposed. Therefore, there was no need for the 20 future spaces shown on the Wal-Mart site to satisfy the Zoning Ordinance.

As to landscaping, she felt that the proposal of the applicant had brought the site into compliance as closely as possible given the existing features. However, she felt that the types of plantings should be diversified to at least two species per type. She noted that Fire Department comments had not yet been received. In her opinion, the applicant should consider comparable front and back design for the architecture of the building.

Mr. Bushouse had questions as to whether the development of the site would be phased. The applicant indicated that it would not be, with the exception of one parking space in the northwest corner of the site. Since this area was greenspace, the applicant proposed that this parking space not be installed unless Township Staff felt it was necessary to satisfy occupancy requirements under the Ordinance.

Attorney Lowell Seyburn was present on behalf of and along with the applicant. In response to questions from Ms. Borgfjord, Mr. Seyburn confirmed that there was no need for the Wal-Mart spaces with the retail use of this building.

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 a driveway permit from the Kalamazoo County Road Commission be obtained for closure of the existing driveway and establishment of a new driveway. Further, Kalamazoo County Road Commission guidelines for adequate signage of the limited movement driveway must be followed by the applicant including, but not limited to, a "do not enter" sign on the applicant's site. A signed and recorded easement from Wal-Mart, Inc. for the purposes of cross-access must be provided to the Township. Further, a revised site plan reflecting the final approved design of the shared right-in only driveway shall be provided to the Township before a building permit may be issued.

(2) That each tenant to occupy the building is subject to Township review and approval to insure that adequate parking is available on the site.

(3) That parking must comply with the approved site plan and the Zoning Ordinance. However, the delayed installation of the space identified in the northwest corner of the building by the applicant at the discretion of the Township Staff was approved. The area of the parallel parking spaces shall be signed as one-way traffic only.

(4) That a distinctive lane shall be established on the car wash area of the site to delineate between the lane for vehicles awaiting a wash and the lane to be used for "through" traffic.

(5) That fixtures details must be provided to the Township Staff for review to insure that outdoor lighting will comply with the requirements of Section 78.700 of the Zoning Ordinance before any additional exterior lighting is established on the site.

(6) That a sign permit in compliance with Section 76.000 is required before any additional signage may be placed on the property.

(7) That Type C greenspace shall be established along the 9th Street frontage between the existing parking and the south property line. Pursuant to Section 75.120, all areas of the site not devoted to parking or walkways must be landscaped with live materials such as groundcover. The proposed species of plantings must be diversified to include at least two different types per required planting. Specific details of each proposed species must be included on the site plan. Landscaping shall be installed consistent with the approved plan before a certificate of occupancy is issued unless a performance guarantee pursuant to Section 82.950 is provided to the Township.

(8) That approval is subject to Township Fire Department approval pursuant to the adopted codes.

(9) That a recorded copy of a revised drainage agreement between the applicant and Wal-Mart shall be provided to the Township Engineer for review and approval prior to issuance of a building permit.

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

(11) The applicant was encouraged to architecturally design both sides of the building to have an aesthetically "pleasing" appearance.

The motion was seconded by Mr. McClung, and it carried unanimously.

ADAM'S OUTDOOR ADVERTISING - INTERPRETATION OF NONCONFORMING USE STATUS / ALTERATION - 5101 STADIUM DRIVE - (PARCEL NO. 3905-25-285-011)

The Board considered the application of Adam's Outdoor Advertising for interpretation of the nonconforming use provisions of Section 62.151 so as determine whether a proposed modification in the method used to change the sign message on a nonconforming billboard is considered an "alteration" triggering the nonconforming use provisions of the Ordinance. The subject billboard is located on the property at 5101 Stadium Drive in the "R-5" Residence District on Parcel No. 3905-25-285-011.

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

Ms. Stefforia noted that the billboard is at the southwest corner of Stadium Drive and Drake Road's intersection. She noted that the billboard is nonconforming as to size, height and location. However, all billboards, regardless of conformity of status, are required to be kept in good repair and in proper state of preservation. The applicant was seeking to modify the face of the billboard to allow for "tri-vision" where there are essentially three to six tenants on each side of the billboard with only one to two messages displayed at a time on each side. The structure to allow for the tri-vision method so as to change the sign message would be physically attached to the existing billboard.

Ms. Stefforia stressed that the sign provisions of the Zoning Ordinance do not allow for signs to have changeable copy which is altered more than once a day. It was noted that Section 62.151 of the Ordinance requires that nonconforming uses or structures in existence at the time of passage of the Ordinance may be continued but shall not be extended, added to, or altered. Ms. Stefforia noted that the Township has a practice of not treating face changes on existing signs, conforming or otherwise, as an alteration triggering the need for the sign to come into compliance with the Ordinance, i.e., the message on the billboard is not subject to Township review.

Andy Wenzel was present on behalf of the applicant. He stated that the proposed modifications would allow for the sign face to change mechanically and save the applicant labor expenses. He stressed that the sign face size would remain the same. Further, there would be no change to the overall structure so as to extend its life. He emphasized that, in his opinion, the proposal was merely updating the method of changing the sign face. He described the evolution of technology with regard to billboard signs. He stated that it was formerly the practice to paint the sign on-site. This evolved to painted panels off-site which were then moved on-site. Later, the technology was a paste-and-paper method. The method currently in use at the site is a vinyl-wrap stretched around the sign face structure. Therefore, he felt there was precedent for allowing different methods of changing the sign message to be utilized without constituting an "alteration" in violation of the Ordinance.

In response to questioning, the applicant acknowledged that the sign face would change on the billboard at the site in question only once per day. Typically, with the tri-vision technology, the sign message would change every 15 to 20 seconds.

Robert Lennon, attorney for the applicant, stated that in his opinion, the term "alteration" would not apply. He also felt that this proposal would merely be changing to a more modern method of changing the message of the sign. He felt that the change would decrease cost and increase efficiency for modifying the sign face. In his opinion, the Ordinance provisions were drafted to prevent an increase in nonconformity or increase the useful life of the nonconforming structure. In his opinion, the proposed changes would not increase the nonconformity since the sign size would stay the same, and the structural change would not increase its life. He felt that the Dictionary definition of "alteration" should not be taken too literally and was contrary to the "intent" of the provision. He made reference to a case from the Alabama Supreme Court which he distributed to the Board. In that case, the Court had reasoned whether a change in technology was an "expansion" of a nonconformity. The Court in that case decided that it was not.

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

In response to questions from Mr. Turcott, Ms. Stefforia stated that changes to the sign face or message were not considered an alteration or expansion under the Ordinance's nonconforming structure section. It was recognized that the tri-vision technology would be attached by bolts or welds to the existing sign structure. Mr. McClung felt that, even if this technology were attached to the structure, it was merely a way of changing the sign face and therefore would not constitute an alteration.

Mr. Bushouse expressed concern about the message on the sign changing every 15 to 20 seconds. He wondered if there would come a time when technology would allow for electronic change through computer lines. He was concerned that allowing the proposed technology would allow for changeable copy more than once per day. Ms. Bugge stated that she saw the proposal as an "alteration" because of the physical attachment to the existing structure.

The Chairperson commented that, if the overall dimensions of the sign as to height or surface face were changing, he would see that as an alteration. Mr. Turcott agreed, stating that, in his opinion, this was merely a technical advance on the method of changing sign face. Since this Township did not consider the changing of the sign face a modification of a nonconforming sign, which was not allowed, he felt that the Ordinance would permit the tri-vision technology to be attached. The Chairperson agreed, stating that this was a way of changing the sign face that would be more technically efficient. He recognized that the applicant could manually change the sign message nightly.

Ms. Borgfjord stated that she felt this was an alteration because a new "panel" would be welded onto the sign structure.

Mr. Bushouse commented that he also felt this would not be an alteration since it was merely recognizing the technological changes in the industry. This opinion, however, was based upon the fact that the message of the sign would not be changed more than once per day.

Mr. Turcott moved to interpret the Ordinance based upon the facts as described by the applicant so as to determine that the use of the tri-vision technology was not an "alteration" in violation of Section 62.151, but merely a recognition of the latest technology provided for changing sign face. However, this interpretation was contingent upon compliance with the Township's limitation on changing sign message no more than once in a 24-hour period. The motion was seconded by Mr. McClung, and the motion carried unanimously.

ADAM'S OUTDOOR ADVERTISING - VARIANCE - ALTERATION TO NONCONFORMING BILLBOARD - 5101 STADIUM DRIVE - (PARCEL NO. 3905-25-285-011)

It was pointed out that this item was withdrawn as unnecessary in view of the interpretation of the Board.

DE FOREST - ACCESSORY BUILDING REVIEW - 10463 WEST "H" AVENUE - (PARCEL NO. 3905-07-130-030)

The Planning Commission considered the application of Marc DeForest for review of a proposed accessory building to be constructed on the property at 10463 West "H" Avenue. The subject site is located within the "RR" Residence District zoning classification and is Parcel No. 3905-07-130-030.

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

Ms. Bugge stated that the applicant was proposing to construct an accessory building totaling 8,928 square feet in an area on a vacant parcel containing approximately 30 acres. The building was proposed to be 128 feet long and 84 feet wide at its broadest point. The applicant had a residence on a 24-acre parcel to the east. Ms. Bugge pointed out that Section 78.800 requires site plan review and approval by the Zoning Board of Appeals prior to allowing the construction of an accessory building on a vacant property. However, even if the parcel was combined with the parcel containing the residence of the applicant, the size of the building would trigger site plan review since it exceeds the 3,507 square foot area of the ground floor of the applicant's dwelling.

Ms. Bugge noted that the building would be set back approximately 510 feet from the road and would be 35 feet from the west property line. However, a driveway system circling the building would come within 5 feet of the neighboring property. Therefore, the opportunity to place plantings between the building and the neighboring property would be limited to a 5-foot area. The applicant would be placing the building more than 300 feet from the east property line shared with his residence parcel.

Ms. Bugge reviewed the standards for approval of an accessory building, noting that the proposed building was 27 feet in height which exceeded the 25-foot height limitation. The applicant was proposing a brick and vinyl-sided facade facing his residence parcel, with the balance of the building having metal siding. Four overhead doors were proposed. It was the applicant's plan to have up to 15 cars stored within the building, i.e., classic and performance vehicles. The building would include a detail and car wash area.

Steve Fleckenstein, the applicant's business manager, was present. He noted that the applicant had done a lot of landscaping on the site around a pond which had been established. The pond straddled the two properties owned by the applicant. Mr. Fleckenstein stated that the applicant had a collection of cars that are currently stored downtown in Kalamazoo. He described the many headaches of bringing the cars to this site. Therefore, it would be more convenient for the applicant to store his collection near his home.

In response to questions from Mr. Turcott, Mr. Fleckenstein stated that, although the applicant routinely buys and sells cars for his personal use, he deals with only dealerships and does no buying or selling on site. He stated that there would be no objection to combining the two properties. Further, the roof could be lowered, although the applicant felt that the current roof line was more aesthetically pleasing. He further stated that all repair and maintenance work on the cars was performed at the dealerships and not on-site.

There was discussion of the proposed driveway network and whether the building could be moved to allow for more distance between the driveway and the property line.

The Chairperson asked for public comment, and Mrs. Stevens had questions concerning the zoning of the property. It was confirmed that the proposed use by the applicant would not change the residential zoning of the site.

The Chairperson reviewed the standards, stating that, in his opinion, the height of the building should come down to 25 feet. Ms. Bugge suggested that, given the proximity of the proposed building to the neighboring property, and given its size, the applicant should consider moving the building further from the property line so as to provide the opportunity for landscaping.

Mr. Bushouse was concerned about the point at which a "hobby" became a business. He expressed the view that, if the owner discontinued his use of the property, this building would be desirable only for commercial use. He noted that it was a very large building, and in his opinion, it was contrary to the "goals of the Township" in this area. He was concerned about protecting neighboring property owners.

In further discussions regarding moving the building, the applicant's representative stated that the placement of the building had been determined so as to avoid taking down any more trees. However, Mr. Fleckenstein acknowledged that the building could be moved.

Ms. Borgfjord expressed concern about the excessive size of the building in a very rural area. She was also concerned that performance cars were not quiet. In her opinion, the detail area, wash bays, and underground storage tanks were not residential in character. She felt the building was more commercial. However, she agreed that it needed to be moved and decreased in height and size.

Mr. McClung commented that he had no problem with the proposed building, given the applicant's use for storage of his personal cars.

Mr. Turcott expressed concern given the proximity to the neighboring property, stating that he felt the building should be moved. The Chairperson agreed. Ms. Bugge suggested that the driveway be approximately 35 feet from the property line, allowing for a 35-foot-wide strip of landscaping. She also suggested plantings along the north of the building. The Chairperson agreed.

Mr. Bushouse felt that the size of the building would invite Ordinance violation. He felt that it was close to a business operation in a residential area.

After further discussion, Mr. McClung moved to approve the accessory building for the stated use only with the following conditions:

(1) That the building height not exceed 25 feet.

(2) That the building and drive be moved 30 feet to the west from where shown on the site plan so as to provide a 30-foot wide planting area.

(3) That landscaping be established in the 35-foot-wide area along the property line and to the north of the building and subject to Township Staff review and approval.

(4) That the parcels of the applicant be combined and that a deed restriction be recorded stating that no future division of the parcels be made which would split the accessory building onto a separate parcel from the residential dwelling.

Mr. Turcott seconded the motion, and the motion carried 3-to-2 with Ms. Borgfjord and Mr. Bushouse voting in opposition.

ADJOURNMENT

There being no further business to come before the Board, the meeting was adjourned at 5:25 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: July 1, 2003 Minutes Approved: , 2003