OSHTEMO CHARTER TOWNSHIP

ZONING BOARD OF APPEALS MINUTES

November 2, 1998

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Agenda

ADVANCED CONSTRUCTION (TODD ROBERTS) - SETBACK VARIANCE - 9002 GREYSTONE ROAD

ROOSEBOOM, JOHN AND JANE - SETBACK VARIANCE - 1940 PARTRIDGE LANE

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A meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Monday, November 2, 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, Scott Paddock, Ordinance Enforcement Officer, Patricia R. Mason, Township Attorney, and five (5) other interested persons.

CALL TO ORDER

The Chairperson called the meeting to order at 3:01 p.m.

 

MINUTES

The Board considered the minutes of the meeting of October 19, 1998. Mr. Brodasky suggested a change to page 8, under item #7, to reference landscaping plans. The Chairperson suggested a change to page 2 to switch the references to applicant and Chairperson in the fourth paragraph.

Ms. Meeuwse moved to approve the minutes as amended, and Mr. Brodasky seconded the motion. The motion carried unanimously.

  

ADVANCED CONSTRUCTION (TODD ROBERTS) - SETBACK VARIANCE - 9002 GREYSTONE ROAD

The next item was the application of Todd Roberts on behalf of Advanced Construction for variance from Section 64.200 of the Zoning Ordinance so as to allow a reduced front yard setback of approximately 38’ (where 40’ is required). The subject property is at 9002 Greystone Road.

The report of the Planning and Zoning Department is incorporated herein by reference. It was noted that, when the location of the home was staked on the lot at 9002 Greystone Road, a curve in the public street was not taken into account. The house was staked too close to the front property line at the point where the line follows the curve in the road, causing the garage to sit 2-3’ within the setback. The Township’s Building Inspector and the applicant were not aware of the error until a survey was done at the time of closing on sale of the home.

Mr. Brodasky expressed his frustration that there were continued problems with building setbacks and enforcement thereof. He recognized that, in this case, the measurements were more difficult because of the curve in the public road.

Mr. Bushouse indicated that, in his opinion, human beings on occasion would err in taking measurements. Further, he felt it was likely that the Building Inspector had visited the property prior to the footings for the garage being established.

The applicant was present, stating that the surveyor who staked the location of the home had "staked each side" but not the middle; therefore, the curve in the road resulted in an error in measurement. The house was now complete.

Public comment was requested, and none was offered.

The Chairperson reviewed the nonuse variance criteria, first discussing whether conformance with the Ordinance was unnecessarily burdensome. Board members agreed that at this time no reasonable options exist regarding compliance with the 40’ setback in that the house is completed and now occupied. The error resulting from failure to note the effect of the curve in the road was the fault of both the builder and the Township’s Inspector.

The Board considered whether substantial justice would be served by granting the variance. Board members were concerned about providing "an escape" for unscrupulous persons who would intentionally violate the Ordinance. However, it was recognized that mistakes in measurement were sometimes possible.

The Board determined that the curve in the street, which resulted in the erroneous measurements, might present a unique physical circumstance. It was felt that the hardship was somewhat self-created in that the builder was responsible in part for the error. However, it was recognized that the Township did approve the location on inspection. The Board also concluded that the spirit and intent of the Ordinance would be served and the public health, safety and welfare preserved in that the degree of the variance was not large and the home, for the most part, was in compliance with setbacks. Ms. Meeuwse observed that most probably review of the statistics on building permits would indicate that measurement errors were a diminutive percentage compared to the overall number of building permits reviewed and issued by the Township.

Mr. Brodasky moved to grant variance based on the preceding analysis. The motion was seconded by Mr. Saunders and carried unanimously.

 

ROOSEBOOM, JOHN AND JANE - SETBACK VARIANCE - 1940 PARTRIDGE LANE

The next item was the application of John and Jane Rooseboom for variance from Section 64.200 of the Zoning Ordinance to allow a reduced side and rear yard setback for an accessory building. The Ordinance requires a 10’ setback from the side and rear property lines for accessory buildings. The property is located at 1940 Partridge Lane. The site is unit #3 within the Quail Meadows PUD.

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

The Chairperson noted the receipt of a number of letters from neighboring property owners, particularly one received from Patrick and Sheila Kelly, owners of the property immediately adjacent to the subject site. The Kelly letter indicated no objection to granting the variance.

In response to questioning by Mr. Brodasky, Scott Paddock stated that the Township had received a complaint about a number of items in the Quail Meadows PUD. During his investigation of the items, Mr. Paddock visually observed that the shed placement on the subject property was in violation of the setback provisions of the Zoning Ordinance.

The applicants were present.

Mr. Rooseboom stated that the applicants were sorry to be in the position of seeking variance from the Township. He indicated that he and his wife had relied upon information received from the builder of their home, United Homes, as to the proper placement of the shed. Mr. and Ms. Rooseboom had been affirmatively told by United Homes that the 10’ setback did not apply to the shed in question because it was not placed on a slab. The applicant indicated that the shed is small (8’ x 8’). The applicant felt that moving the shed into conformance with the Ordinance would disturb the landscaping and overall layout of the home, porch, etc., on his lot. He felt that moving the shed would also be aesthetically displeasing to the neighbor, blocking the neighbor’s view. The applicant indicated that the overall layout of the lot, including the landscaping, and the placement of the shed in keeping with the landscaping, was a "coordinated plan." Changing the location of the shed would therefore, in his opinion, not be beneficial to his property or the adjoining properties. He stated that the shed is only a couple of feet from the property line.

Ms. Rooseboom stated that she felt there was little area in the back yard for the placement of the shed. She stated that there was only 30’ from the home to the property line. The porch on the back of the home extended 10’, and the landscaping was another 10’ wide.

The Chairperson indicated his sympathy with the dilemma of the applicants but stated that the Board must consider the Township as a whole. He felt it would be difficult to set a precedent and grant the variance because, to grant the variance in this case, the Zoning Board of Appeals would have to grant variance to any applicant in the Township as to the placement of a similar shed. He felt it was significant that the applicant could place the shed on the property in conformance with Ordinance requirements, i.e., that there was sufficient room on the property.

The Board reviewed photographs of the property and the existing location of the shed.

Mr. Brodasky expressed his concern about justifying a decision on this application to all those applicants who have been denied similar applications in the past.

Mr. Bushouse stated that, in his opinion, since the shed was a "temporary building," i.e., not placed on a slab, the building should not be subject to setback requirements. He felt that there were a sizable number of similar buildings which are not in conformance with Ordinance standards in the Township. He was not concerned with the placement of the shed in that he believed its location would not pose any public health, safety or welfare problems. He noted that the Township’s Building and Fire Codes would not require the setback in question. He felt it was significant that the applicant, under the Zoning Ordinance, could place an 8’ fence around his property on the property line. He felt this would involve as much "structure" as the subject building.

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

The Chairperson questioned the Ordinance Enforcement Officer about any other violations in this area. Mr. Paddock stated that he had noted 3-4 other similar sheds and that the owners of these sheds had reduced their size and/or moved them to come into compliance with Ordinance standards.

The Chairperson reviewed the nonuse variance criteria. He felt it was significant that the shed could be placed in compliance with the Ordinance provisions. Therefore, compliance was not unnecessarily burdensome. It was recognized that, although the applicant had expended considerable monies, financial hardship was not relevant to the Board’s consideration. Ms. Stefforia commented that the Board might consider that the error was made by the applicants in good faith based upon representations from United Homes. Further, it might be significant to consider that requiring compliance would require disturbing established landscaping.

The Board considered whether substantial justice would weigh in favor of granting the variance. It was noted that similar applications had been decided previously and had been denied. It was felt this application was not akin to those applications which had been approved; for example, where the site abutted a utility right-of-way, the request involved extension of a pre-existing building line, or the request was in character with the surrounding area. There were no unique physical circumstances at the property. It was felt that, although the error was in good faith, the hardship was self-created.

Mr. Brodasky stated he felt the Board would be establishing a dangerous precedent, and Ms. Meeuwse agreed. Mr. Bushouse emphasized that, if there were a "health, safety and welfare" issue regarding placement of the shed, he would not be in favor of variance.

After further discussion, Mr. Bushouse moved to grant the variance to allow the accessory building to remain as placed on the property, with the following reasoning:

(1) That conformance was unnecessarily burdensome in that the applicants had made a good faith error or innocent mistake based upon the representations of their builder. To require compliance would disturb established landscaping.

(2) That substantial justice would weigh in favor of granting the variance in that the placement of the shed would be in keeping with the character of the area. Reference was made to the fact that the site is part of the Quail Meadows PUD and that the PUD has been granted relief allowing placement of certain buildings at a point less than the required setbacks. It was recognized that PUD developments, under the Ordinance, may be granted deviations from strict application of setback provisions to allow for flexibility in design.

(3) That, although there were no unique physical circumstances and the hardship was self-created, it was felt that the spirit and intent of the Ordinance would be served and the public health, safety and welfare preserved based upon the small size and temporary nature of the accessory building, and the fact that no building permit was required to establish the building. The letters received from neighboring property owners who seem to believe that the current placement of the shed is more aesthetically pleasing were also a factor. Reference was also made to the photographs submitted by the applicant.

The motion was seconded by Mr. Saunders. Upon a vote on the motion, the motion was defeated 3:2 with the Chairperson, Ms. Meeuwse and Mr. Brodasky voting in opposition to the motion.

Ms. Meeuwse moved to deny variance based on the following reasoning:

(1) That conformance was not unnecessarily burdensome in that there was sufficient rear yard area for the applicant to come into compliance with regard to placement of the shed.

(2) That substantial justice would require denial of the variance in that other similar applications had been previously denied. Those applications granted were premised on reasons other than exist in this instance, such as abutting a utility right-of-way.

(3) That there are no unique physical circumstances justifying the variance.

(4) That, although the applicants had made an honest mistake, the hardship was self-created.

(5) That the spirit and intent of the Ordinance would not be served and the public health, safety and welfare would not be preserved if the variance were granted in that granting the variance would establish a precedent which would negate the standard established by the Ordinance; granting the variance would require the ZBA to grant variance in almost every request involving an accessory building.

Ms. Meeuwse stressed that it was also her concern that these applicants be treated equitably with prior applicants.

Mr. Brodasky seconded the motion, and the motion carried 3:2 with Mr. Bushouse and Mr. Saunders voting in opposition to the motion.

 

OTHER BUSINESS

It was noted that four of the five members were unavailable for the meeting of November 16, 1998; therefore, it would be canceled. There was a discussion of rescheduling the meeting to November 30, 1998.

ADJOURNMENT

There being no further business to come before the Board, the meeting was adjourned at 4:50 p.m.

Minutes Approved:  November 30, 1998