OSHTEMO CHARTER TOWNSHIP

ZONING BOARD OF APPEALS MINUTES

March 15, 1999

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Agenda

METRO TOYOTA - VARIANCE AND SITE PLAN AMENDMENT - 5850 STADIUM DRIVE

NATIONAL HERITAGE ACADEMY - SITE PLAN REVIEW - WEST SIDE 9TH STREET NORTH OF STADIUM DRIVE

PROGRESSIVE ALTERNATIVES - ORDINANCE INTERPRETATION - 6029 TWILINGATE

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A meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Monday, March 15, 1999, commencing at approximately 3:00 p.m. at the Oshtemo Charter Township Hall, pursuant to notice.

MEMBERS PRESENT:

Thomas Brodasky, Chairperson
Millard Loy
David Bushouse
Sharon Kuntzman


MEMBER ABSENT:

William Saunders

Also present were Jodi Stefforia, Township Planning Director, Patricia R. Mason, Township Attorney, and ten (10) 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 March 1, 1999. Mr. Loy moved to approve the minutes as submitted, and Ms. Kuntzman seconded the motion. The motion carried unanimously.

METRO TOYOTA - VARIANCE AND SITE PLAN AMENDMENT - 5850 STADIUM DRIVE

The next item was the application of Metro L.L.C. a/k/a Metro Toyota for sideline setback variance from Section 64.700 and for site plan review to facilitate an addition to the

showroom of the existing building at 5850 Stadium Drive. The subject property is within the "C" Local Business District Zoning classification.

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

Ms. Stefforia noted that the subject facility had received site plan approval in 1987. At that time, special exception use approval for the outdoor display portion of the site was granted. The Zoning Board of Appeals approved an amendment to the site plan and a setback variance in 1993 to allow a 7,250 sq. ft. building addition. Variance from the setback standard was required in 1993 because the Quail Run property adjacent to the west had been rezoned from the Commercial to the "R-4" District in 1991. Therefore, a supplemental setback of 85’ was applicable pursuant to Section 64.700. The proposed addition in 1993 was in line with the existing building. The applicant now seeks a variance to allow another addition to the property. The building addition would be at a setback of 52’ where a supplemental setback of 85’ is required.

As to whether conformance is unnecessarily burdensome, it was emphasized that, in order to expand the showroom area and work within the parameters established by the current layout and function of the building, the showroom and office addition is proposed on the west side of the building. Therefore, given the layout of the building, the proposed addition location is appropriate. Ms. Stefforia noted that, as to substantial justice, similar variances had been granted and were justified by a finding that the addition would be in line with the existing building. In other instances, setback variances were granted where a building existed prior to current Ordinance provisions.

As to whether there were unique physical circumstances, the rezoning of the adjacent property to the "R-4" District in 1991 was cited. With regard to whether the variance would be within the spirit and intent of the Ordinance and the public health, safety and welfare observed, it was noted that the paving and vehicular circulation at the site would not be changed as a result of the proposed building addition. The addition would not result in additional traffic between the building and the west property line. The existing berm and fencing along the west line would remain.

Ms. Stefforia referenced her report concerning site plan review criteria.

Michael Chojnowski was present on behalf of the applicant. He stated that Jeff DeNooyer, one of the owners, as well as Bob Tower, architect, were also present. He emphasized that, when the facility was built in 1987, the property to the west was located within the "C" Zoning District. He stated that the site had been laid out in such a way as to place the building "off center" so that the main traffic was on the east side of the building. At the time, it was believed that there would be ample room to expand the building on the west side. However, because of the 1991 rezoning of property adjacent on the west, which increased the setback, buildable area at the site was limited. Mr. Chojnowski felt that the important point to consider was that there would be no need for the variance except for the 1991 rezoning of the neighboring property. The addition to the building would be well outside the typical 20’ sideline setback. He also stated that the addition was not at the discretion of the applicant and said that Mr. DeNooyer would speak to this issue. He felt that the expansion would have no adverse effect on the properties to the west. He believed that noise and lighting were the main concerns of the neighbors and that these items had been addressed. Mr. Chojnowski felt that a decision granting variance would be unlikely to create an undesirable precedent since this use was in place prior to the rezoning.

Jeff DeNooyer was also present and stated that the site accommodates both Toyota and Jaguar franchises. Since the Jaguar franchise was introducing new models, representatives of Jaguar had reviewed the site. They determined that an addition was needed to adequately serve their franchise; they felt there was presently not enough showroom space. The addition would accommodate additional showroom space, as well as creating a separate service area for "new car delivery." Mr. DeNooyer stressed that the applicant was attempting to work with the layout of the present building. He stressed also that there would be no change to lighting or sound system. Further, existing paving and site circulation would not be impacted. Basically, the applicant was proposing the enclosure for showroom purposes of an existing outdoor display area.

There was discussion of the fencing between the site and the residential property to the west. Mr. DeNooyer said that the applicant would be repairing/replacing this fencing. In response to questioning by Mr. Loy, the applicant stated that this fencing "goes all the way to the north property line on the west side."

The architect for the project displayed a drawing of the proposed site and the vicinity.

The Chairperson asked whether the addition would cause the drive to be moved, and the applicant responded that it would not; the drive would not be moved further to the west.

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

The Chairperson observed that there did not appear to be any way to construct the addition at the site, given the existing layout, in compliance with Ordinance requirements or the existing 70’ setback. Although the addition would not be in line with the existing building, the Chairperson felt it was significant that the addition would merely be enclosing an existing outdoor display area. The layout of the site, including access drives, would not be changed.

Mr. Bushouse felt that an important distinguishing feature was that the site was established prior to rezoning of the neighboring property, which had made the supplemental setback applicable. He felt it was important that the applicant could have placed this building addition at this location when the site was first established. Further, he recognized there was significant screening between the property and adjacent land owners. Ms. Kuntzman agreed, stating she felt it was significant that the applicant would be replacing the existing fence. Mr. Loy concurred, stating that he would be in favor of the variance, particularly since the addition would be in place of existing display area.

Mr. Loy moved to approve the variance for the reasons set forth in the preceding analysis. Mr. Bushouse seconded the motion, and the motion carried unanimously.

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

(1) That no new access point or vehicular circulation pattern was proposed.

(2) That the existing drive-through vehicle drop-off area would not be changed with the proposed building addition. No new building entrances were proposed between the addition and the adjacent residential properties.

(3) That the existing fence (which would be replaced) and the berm that screened the facility from the adjacent residential development would be undisturbed by the project.

(4) That the fire lane access around the building would not be changed with the addition. Nevertheless, approval was subject to the review and approval and any conditions imposed by the Township Fire Department.

(5) That no additional stormwater runoff would result from the addition; nevertheless, the approval was subject to the review and approval of the Township Engineer and any conditions imposed by the Engineer.

(6) That it was acknowledged that a Hazardous Substance Reporting Form and Environmental Permits Checklist are complete and on file with the Township.

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

 

NATIONAL HERITAGE ACADEMY - SITE PLAN REVIEW - WEST SIDE 9TH STREET NORTH OF STADIUM DRIVE

The next item was the application of Charter Development Company which had been tabled from the meeting of March 1, 1999, for site plan review of a proposed charter school. The subject property is located on the west side of 9th Street, north of Stadium Drive, in Land Section 26 and within the "R-2" Residence District Zoning classification. The applicant had withdrawn its variance request since variance was no longer needed. The applicant was proposing a public road be built along the north property line so as to comply with the frontage requirements of the Ordinance. The access to the subject site would be located on the proposed public road rather than directly onto 9th Street.

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

The proposed public street would run west from 9th Street along the northern boundary. It would have one ingress and two egress lanes. The site plan indicates a deceleration lane on 9th Street to accommodate turns to and from the proposed road. A widening of 9th Street to accommodate left turns into the proposed road is also indicated. Ms. Stefforia reported that the Kalamazoo County Road Commission had indicated favorable reaction to the proposed public street. However, it was felt that approval should be subject to the review and approval of the Kalamazoo County Road Commission.

Representatives of the applicant stated that they were present to answer questions.

The Chairperson sought public comment, and Jack Goodrich, a neighboring property owner, stated that he had no objections to the proposed school but was concerned about a 20’ overlap of the school property onto his property line according to the survey. He stated that the school’s survey did not agree with the survey that he had had performed regarding his property. Ed Walter, another neighboring property owner, agreed with Mr. Goodrich’s comments. Representatives of the applicant stated that the 20’ overlap had occurred because the competing surveys performed had been measured from different points. Legal counsel for the applicant, Laura Luyendyk, stated that the boundary dispute should not affect the site plan approval since there were no planned improvements in this area. Neither the road nor the utilities would be placed in the disputed portion of the property. Further, the applicant pledged to work with the residents neighboring the property to resolve the dispute.

Mr. Bushouse stated that he recognized that there were many boundary disputes between neighbors, such as the instant case; specifically, he referenced properties along Stadium Drive. The Township Attorney stated she felt that the Board should be comfortable with granting the site plan review approval despite the boundary dispute in that there were no improvements in the disputed area and the disputed area was not necessary to fulfill area or frontage requirements under the Ordinance.

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

Mr. Bushouse suggested that fencing be established along the east side to prevent "interference with neighboring properties by students at the school." The applicant responded that they would be agreeable to establishing fencing.

Mr. Loy questioned the applicant as to whether they had satisfied Fire Department concerns. The applicant responded that Fire Department comments had been reviewed and that the latest submission of the applicant included changes as suggested by the Fire Department.

Ms. Kuntzman had questions regarding the number of students who would be accommodated at the site. The applicant responded that there would be 400 students accommodated in phase I and 250 students accommodated in phase II. The application before the Board concerned only phase I. The applicant indicated that school events would be conducted off site where added parking could be accommodated.

Mr. Loy had questions concerning proposed landscaping. Pete Lazdins stated that berming along the residential areas would probably be established, along with evergreens of 5-6’. The applicant would be submitting a landscape plan to the Township for review and approval. The landscaping would be done at the time of the school construction.

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

(1) That ingress and egress to the site would be provided from the construction of a proposed public street to run from 9th Street along the parcel’s north boundary. The approval is subject to the review and approval of the Kalamazoo County Road Commission.

(2) That a total of 164 parking spaces is proposed. Parking was satisfactory given that the Ordinance requires one space for each employee and 40 employees are anticipated. All parking must meet the dimensional requirements of the Ordinance.

(3) That the proposed site circulation and layout had been reviewed by the Fire Department, and approval of the subject site was subject to the approval of the Fire Department and any conditions imposed.

(4) That all setbacks were met and that approval for an expansion was not being reviewed or granted at this time.

(5) That no outdoor storage was proposed or approved.

(6) That the proposed dumpster arrangement and screening of the dumpster were satisfactory.

(7) That all lighting must comply with Section 78.700.

(8) That any signage must be in compliance with Ordinance standards and be reviewed and approved through the permit process.

(9) That a landscaping plan be submitted to Township staff for review and approval with the suggestion that the landscaping include fencing on the east and south sides.

(10) That approval was subject to the review and approval of the Township Engineer and any requirements imposed by the Engineer.

(11) That the school would be served by public water and a septic system. However, use of public sewer, if determined to be reasonably available, was required. Approval was subject to the review and approval of the County Health Department.

(12) That the applicant had submitted a completed Environmental Permits Checklist and Hazardous Substance Reporting Form.

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

PROGRESSIVE ALTERNATIVES - ORDINANCE INTERPRETATION - 6029 TWILINGATE

The next item was the application of Progressive Alternatives for interpretation regarding the use of a duplex. The subject duplex is rented to unrelated people with disabilities that receive up to 24-hour medical assistance on site from the employees of Progressive Alternatives. The applicant requests an interpretation to determine if the use is permitted within the "R-2" Residence District Zoning classification. The property is located at 6029 Twilingate.

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

Ms. Stefforia noted that the applicant is the owner of the duplex and the company rents the duplex to individuals with disabilities who require assistance with day-to-day living. There are employees of the company at the duplex providing care to the tenants. The arrangement became known to the Township due to an on-street parking problem, but the parking problem had been resolved. Nevertheless, there was a question whether, under the Ordinance, the proposed use was permitted within the "R-2" Residence District.

It was recognized that, although Section 11.270 defines two-family dwelling as a building containing two separate dwelling units designed for residential use, in that the Ordinance does not limit the number of unrelated people who may live together, it was not necessarily clear within the Ordinance whether renting a single-family or two-family home to six or seven different unrelated persons renders the use multi-family rather than single- or two-family use in violation of Ordinance provisions. However, the Township Attorney explained that, under Michigan law, a licensed residential facility for disabled persons of a certain limited number was to be considered a residential use and allowed, as a permitted use, within Residential Zoning Districts. Further, the law, in the Fair Housing Act, encouraged the consideration of such housing as residential in character. The Attorney felt that it was important to consider the characteristics of a particular use to determine whether it was residential and permitted within the "R-2" District. Again, it was recognized that, if the subject facility had a license from the State of Michigan, Michigan law would require that the use be considered as permitted residential.

Kim Nolan, on behalf of Progressive Alternatives, spoke to the application, stating that housing for disabled persons in the area was in short supply. She stated that her facility had been created with the intent to allow disabled persons to live in a home-like setting. Residents were provided with up to 24-hour care as needed. Up to two persons would reside in each bedroom within each portion of the duplex. Each unit of the duplex had two bedrooms. She stated that not all persons needed 24-hour supervision. Ms. Nolan stated that licensing the facility would require services that the residents did not need and could not afford. For instance, licensing would require 24-hour supervision. Many residents at the facility did not require 24-hour care. She stressed that residents had their own furniture at the site, and many cooked their own meals. According to Ms. Nolan, as confirmed by the Township Attorney, the facility had the option of being licensed; but licensing would put certain requirements on the facility that would limit its ability to serve the residents cost-effectively. Mr. Bushouse and Ms. Kuntzman both recognized that many residents of private homes hire housekeepers, nursing staff and others to provide assistance with living. Therefore, assisted living is "residential in character."

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

After further discussion, Mr. Bushouse moved to interpret the Zoning Ordinance to allow the use, as described by Ms. Nolan, as permitted within the "R-2" Residence District Zoning classification as a two-family dwelling. The interpretation was based on:

(1) The number of residents (a maximum of two per bedroom within each unit of the duplex) at the facility;

(2) The characteristics of the use/facility;

(3) The fact that assisted-living services were provided up to 24 hours per day as needed by the residents;

(4) The intent of the Fair Housing Act and Township Rural Zoning Act that such facilities were residential in character and should be considered permitted uses;

(5) That, if the subject facility were licensed, it would be permitted by law; but licensing of the subject facility would not change its character but merely restrict the living options of the residents.

It was recognized that a different interpretation might be applied to other sorts of living arrangements involving rental of single-family homes or duplexes to unrelated persons.

Mr. Loy seconded the motion, and the motion carried 3:1 with Ms. Kuntzman voting in opposition.

 

ADJOURNMENT

There being no further business to come before the Board, the meeting was adjourned at 4:30 p.m.

Minutes Prepared:
March 16, 1999

Minutes Approved:
April 5, 1999