OSHTEMO CHARTER TOWNSHIP

ZONING BOARD OF APPEALS MINUTES

September 13, 1999

Agenda
RAMBLING ROAD PEDIATRICS - SITE PLAN REVIEW - 5629 STADIUM DRIVE
VAN DOESELAAR - DEPTH-TO-WIDTH VARIANCE - 10361 WEST MAIN STREET
SALIK - MORE THAN ONE DWELLING ON A PARCEL VARIANCE - 9206 WEST H AVENUE
GOCENSKI - HOME OCCUPATION PROVISIONS - 2100 NORTH 3RD STREET

A meeting was conducted by the Oshtemo Charter Township Zoning Board of Appeals on Monday, September 13, 1999, commencing at approximately 3:00 p.m. at the Oshtemo Charter Township.

MEMBERS PRESENT:
Thomas Brodasky, Chairperson
David Bushouse
Sharon Kuntzman
Millard Loy
William Saunders

MEMBER ABSENT: None

Also present were Jodi Stefforia, Planning Director, Mary Lynn Bugge, Township Planner, and Patricia R. Mason, Township Attorney, and twelve 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 August 2, 1999. The Loy moved to approve the minutes as submitted. Ms. Kuntzman seconded the motion. The motion carried unanimously.

RAMBLING ROAD PEDIATRICS - SITE PLAN REVIEW - 5629 STADIUM DRIVE

The Board considered the application of Bronson Properties Corporation for Rambling Road Pediatrics for site plan review of a proposed 16,403 square foot medical building at 5629 Stadium Drive. The subject site is located within the "C" Local Business District zoning classification. The Report of the Planning and Zoning Department is incorporated herein by reference.

Ms. Bugge Stefforia stated that the site would be served by an existing drive onto Stadium Drive that runs along the property's west line and currently serves two (2) other buildings. Ms. Bugge Stefforia stated that the Road Commission would be looking for some improvement to the access point, possibly a taper or deceleration lane. The site would also have access to 11th Street due to a proposed connection with the property to the east.

The proposed parking exceeded the number of spaces required by the Ordinance. As to lighting, there were some areas under discussion with the applicant, but Ms. Bugge Stefforia felt it was probable that the lighting plan could be amended to conform to the Ordinance. The proposed landscaping at the site was shown on the plan. The Township Engineer is in the process of reviewing the storm water management system proposed for an on-site location. Public utilities would serve the proposed office building; the extension of municipal water and sewer are currently being planned from 11th Street west to Plainview Street.

Larry Harris, of L. L. Harris & Associates, was present on behalf of the applicant. He stated that Mike Way and Carol Long were also present representing the application. In answer to questioning from Board members, Mr. Harris stated that the access point was a private drive owned by the entities using same. He stated that the proposed building, approximately 16,000 square feet, would be divided into essentially three (3) units. Only 88 parking spaces were required by the Ordinance, and 101 were proposed. There would be approximately an acre of open space at the site. Storm water retention would be accomplished at the site with part of same being a leaching system and part consisting of piping. Mr. Harris stated that connecting the property to 11th Street would improve site safety. The applicant would meet the requirements of the Fire Department including the placement of a new hydrant. The building would be furnished with a sprinkling system. Mr. Harris reported that the applicant is working with the Township on a proposal so as to come into compliance with the lighting provisions of the Ordinance.

Mr. Bushouse had questions as to whether a fire lane would be required for the east side of the property. It was noted that the Fire Department had reviewed the proposed site and did not list this as a requirement.

In response to questioning by Ms. Kuntzman, the applicant indicated an intent to preserve existing trees.

Mr. Bushouse had questions regarding the access point, and Ms. Long stated that the applicant has an undivided one-half interest in the drive which is shared with the Vlachos property. She stated that there is an agreement regarding this ownership which runs with the property. Access to 11th Street would be utilized by the subject property, the Vlachos site and the property to the east of the subject.

Warren Schemmer of Diekema-Hamann-Architects, Inc. presented the floor plan of the proposed building. Three (3) entities would locate within the building:   (1) Bronson Diagnostics; (2) Rambling Road Pediatrics; (3) A vacant area for rental.

Three (3) entrances were proposed. The building would consist of a one-story wood frame construction.

Ms. Stefforia stated that administrative approval of any future tenant would be required.

The Chairperson called for public comment, and Paul Vlachos stated that his family and law firm presently owns the property located to the west. He felt this proposal would be a welcome addition to the Township. He indicated that the shared driveway is 250 feet deep on a 66-foot wide right-of-way. A Memorandum of Agreement specifies use of the right-of-way solely for the Vlachos and Bronson parcels. Mr. Vlachos stated that his family would like their parcel to have access to 11th Street as well.

Ms. Stefforia noted that the revised plan includes a depiction of the dumpster enclosure information. There was some discussion of the access to 11th Street, and the applicant indicated that it was in negotiations for this access arrangement. Ms. Stefforia stated that the Fire Department had reviewed the site with this access proposed. If the access were removed, the Fire Department would have to review the site again. Mr. Loy stated that he would like to condition approval on the provision of proof of access to 11th Street or at least that the applicant negotiate for this access in good faith.

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

(1) The facility would be served by an existing drive on Stadium Drive that runs along the property's west line and currently is shared with another site. Approval is subject to the review and approval of the Kalamazoo County Road Commission.

(2) Parking at the site is sufficient.

(3) No outdoor storage has been proposed or approved.

(4) The dumpster enclosure information provided by the applicant was sufficient.

(5) All site lighting must be in compliance with the lighting guidelines set forth in Section 78.700.

(6) Pursuant to Section 76.000, a sign permit was required before any sign could be placed upon the subject property.

(7) No variance had been requested or approved.

(8) The landscaping as proposed on the plan was satisfactory.

(9) Approval was subject to the review and approval and compliance with the requirements of the Township Fire Department. Administrative and Fire Department re-review of the site was required if no access to 11th Street was proposed.

(10) The approval was subject to the Township Engineer finding that the proposed site engineering is adequate.

(11) An environmental permit checklist and hazardous substance reporting form had been completed and were on file with the Township.

(12) The applicant was required to furnish documentation evidencing legal right to share the access point and for cross-access/easement to access 11th Street if such an access continued to be proposed by the applicant.

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

 VAN DOESELAAR - DEPTH-TO-WIDTH VARIANCE - 10361 WEST MAIN STREET

The next application was by Paul and Connie Van Doeselaar for a variance from Section 66.201 of the Zoning Ordinance to allow a land division where the resulting parcel would have a depth of more than four (4) times the width and where neither parcel would have 200 feet of frontage at 10361 West Main Street. The Report of the Planning and Zoning Department is incorporated herein by reference.

The applicant was proposing to split the property into two (2) equal parcels dimensioned at 165.4 feet by 1,316.4 feet. Each parcel would be 34.6 feet deficient in frontage and have a depth-to-width ratio of 7.96 to 1. The applicant requested a variance from the 200 foot frontage requirement on May 3, 1993, which application was denied. The applicant felt that there were changes in the vicinity warranting a reconsideration of the variance.

The Chairperson made reference to the parcels to the east of the subject property. Ms. Bugge stated that Parcel 18-430-020 was "grandfathered" and therefore buildable. Parcel 030 was not "grandfathered" but was vacant. A residence had been established on Parcel 010, but Ms. Bugge was unable to find evidence that a variance had been granted. It was recognized that the application was similar to that of Klerk located across the street on West Main, which application had been denied. In the Saunders' application, the division of a non-conforming parcel had created one (1) non-conforming and one (1) conforming parcel. Further, in that application, only the depth-to-width ratio was at issue.

The applicants made reference to their "cover sheet" which listed their reasoning for the variance. Mrs. Van Doeselaar stated that she felt that the Skyview Estates development had "changed the character of the area". She felt that there were several variances which had been granted by the Board from the 200 foot frontage requirement. In her opinion, establishing a second house on the acreage would be in keeping with the area.

The Chairperson expressed concern about setting a precedent of this nature. He recognized that in previous applications a non-conforming parcel had been divided so as to create one (1) conforming parcel. Here the applicants were asking to make a conforming parcel into two (2) non-conforming parcels.

Mrs. Van Doeselaar commented that she believed that Parcel 030 was going to be built upon shortly. Ms. Bugge responded that Parcel 030 would require a variance to be buildable.

Mr. Loy questioned whether the applicant had pursued the idea of site condominiumizing or platting the property. The applicant stated that she had explored this possibility, but it was too costly. She felt that pursuing these options would require the division of the property into more parts. She also felt that such options would require putting in a road and taking down trees.

The applicant made reference to the applications of David Corning as well as the Whitey Deen application. However, Board members commented that the Corning and Deer applications did not involve frontage.

Barry Crouch of 1st Street stated that his property backs up to the West side of the subject site. He had no problem with the application except that he was concerned that a new home on the site would be built too close to his property line.

Mr. Bushouse commented that he felt that a request to put two (2) single-family homes on this property did not seem out of line. Mr. Loy stated that he was concerned that the property could be developed in compliance with Ordinance provisions. He recognized that the Township could not consider financial cost as a factor. He was not in favor of creating a precedent. Ms. Kuntzman and Mr. Saunders agreed.

Ms. Kuntzman moved to deny the variance for the following reasoning:

(1) That conformance was not unnecessarily burdensome in that the applicant had other options to develop the property in compliance with the Ordinance, such as site condominiumizing or platting.

(2) That substantial justice would not weigh in favor of granting the variance in that other similar applications had been denied. It was recognized that that applicant was proposing the creation of two (2) non-conforming parcels from one conforming parcel.

(3) The hardship was self-created in that the development option was at the discretion of the applicant.

(4) That there were no unique physical circumstances preventing compliance.

(5) That granting a variance was not within the spirit and intent of the Ordinance. The applicant was requesting a large deviation and was seeking to create two (2) non-conforming parcels from one conforming parcel.

Mr. Loy seconded the motion. The motion carried four-to-one with Mr. Bushouse voting in opposition.

SALIK - VARIANCE - MORE THAN ONE DWELLING ON A PARCEL - 9206 WEST H AVENUE

The Board next considered the application of Stephen Salik for a variance from Section 66.150 to allow a second dwelling on a parcel that has neither twice the frontage nor area required. The variance is requested to allow the placement of a manufactured home on the property subject to removal of the existing home within one (1) year at 9206 West H Avenue. The property is within the "AG" Agricultural-Rural Zoning District classification. The Report of the Planning and Zoning Department is incorporated herein by reference.

Ms. Bugge noted that the applicant was seeking permission to locate two (2) homes on the parcel temporarily. A manufactured home, on a permanent concrete foundation, would be placed on the site with the existing home removed within a year. Ms. Bugge clarified that the property has 264 feet of frontage and 95,832 square feet of area.

Kenny Watts on behalf of the applicant was present stating that he is doing the construction which will place the home on the site. He noted that the applicant had previously combined two (2) non-conforming parcels to make one (1) conforming parcel. Mr. Watts stated that he is willing to agree in the contract regarding construction to remove the house within one (1) year.

Ms. Bugge pointed out that in other similar cases once occupancy of the second home was granted, the occupancy of the original home was vacated. The applicant's representative stated that that would be the case here. In response to questioning by Mr. Loy, the applicant stated that new septic would serve the site; however, it would be served by an existing well.

The applicant responded to a question from Ms. Stefforia by stating that it would take four (4) to five (5) months to get the home on the site and ready for occupancy.

There was discussion of obtaining a letter of credit or other performance guaranty to pay the cost of removal of the home in the event that it was not, in fact, removed by the applicant.

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

Mr. Saunders stated that he had no problem with the proposed variance. The Chairperson agreed, stating that as long as it was guaranteed that the original home would be removed, he felt that the spirit of the Ordinance would be served.

Mr. Saunders moved to approve the variance based upon the discussion of the Board with the following conditions:

(1) That the original home was required to be torn down within one (1) year from the grant of the building permit for construction of the second home on the subject property.

(2) That a performance guaranty or letter of credit, which was irrevocable, be provided to the Township to guarantee the cost of the removal of the original home.

(3) That once an occupancy permit was granted for the second home, the original home must be vacated within one (1) week.


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

GOECENSKI - HOME OCCUPATION PROVISIONS - 2100 NORTH 3RD STREET

The next item was the application of Gary and Kirsten Goecenski for a variance from the following provisions of Section 11.310 of the Zoning Ordinance regarding the definition of a home occupation:

(1) Requirement that the occupation be conducted entirely within the dwelling;

(2) Conducted only by persons living in the subject dwelling;

(3) Limit on occupation taking up only 20 percent of the gross interior floor area of the dwelling or 300 square feet whichever is less.

The applicant operates a marketing business with employees and would like to conduct said business from an existing 2,800 square foot accessory building on the property at 2100 North 3rd Street. The property is located within the "AG" Agricultural-Rural Zoning District classification. The report of the Planning and Zoning Department is incorporated herein by reference.

Ms. Stefforia stated that a building official had noticed that the pole barn at the subject property was being converted to an office use. The Township then notified the applicants that use of the subject site for a business was not allowed except as a home occupation. The applicants maintained that the former owner had run a business out of the accessory building; however, the Township was not aware of this fact. The problem was that the applicants' use would be conducted within an accessory building and would involve employees. Ms. Stefforia made reference to the application of the Seelbinders in which the proposed use was conducted within the dwelling, but employees reported to the site. The Zoning Board of Appeals had determined that it was not in favor of a variance for the Seelbinder site. Ms. Stefforia pointed out that the applicant has several options to comply with Ordinance provisions, for example, moving the business to a commercial district or conducting the business within the dwelling without employees. Ms. Stefforia had researched the home occupation provisions of other communities and found that, nationwide, they are very similar to the provisions of the Oshtemo Charter Township Zoning. Such ordinances typically limit uses to no employees other than residents of the site, and no use of an accessory building. It was felt that the hardship was self-created in this case, in that the applicants did not check with the Township before purchasing the property.

The applicant was present along with his wife and referenced his application packet.

The Chairperson asked the applicant whether most of his arguments were based on lack of traffic and noise. The Chairperson, however, was concerned that no explanation or justification for a variance from the limitations on employees and use of an accessory building had been provided by the applicant. The applicant stated that he felt a variance should be granted because his business would not compromise the intent of the provisions. He felt that his use would not negatively impact the area. The applicant provided a handout to the Board and noted that the accessory building being used was "existing on the site". He felt that the site would continue to have a residential character. In his opinion, the neighbors would not even notice that this business was being conducted. He felt that there would be no negative impact on property values. There would be no signage and no customers at the site. The employee parking would be established behind a berm.

He stated that they had not asked the Township whether the use of the accessory building was allowed because the previous owner had used the accessory building for a business. In his opinion, it would be a hardship to deny the variance, in that the couple wished to work at their home in order to take care of their son.

The Chairperson was concerned that granting a variance here would set a precedent allowing any type of business to locate within a residential or agricultural district. Any applicant could come to the Township making the same arguments and receive a variance.

In response to questioning by Ms. Stefforia, the applicant stated that the square footage of the home was 2,400 square feet and that the accessory building is 2,800 square feet. There was concern that the use of the accessory building would, in fact, be the primary use given the relative sizes.

Mr. Bushouse stated that he had sympathy with the applicant and felt that there were other businesses being operated within the Township in residential zones without Township knowledge. However, he was concerned about allowing home occupations within residential districts and "commercializing" the properties. Nevertheless, he would be in favor of having the Planning Commission look at the text to see if any changes should be made. In his opinion, however, conducting the business in a separate building with employees was rendering use of the property as "general commercial". He felt that this was contrary to the intent of the Ordinance.

Ms. Kuntzman also had trouble believing that a variance was appropriate in that the use could be placed within the home. She did not feel that the applicant could meet any of the criteria for a variance. Mr. Loy agreed stating that he was concerned about setting a precedent which would allow business use in all zones. He was also concerned about consistency with the Seelbinder decision. He felt that the Seelbinder use was less intense in that only a couple of employees were parking and not working at the site. Mr. Loy felt that conformance with the Ordinance was not unnecessarily burdensome.

Mr. Saunders agreed stating that he felt that this would open the door to "general business use" of residential property. The Chairperson stated that he felt it would be literally re-writing the entire Ordinance to grant a variance here.

Ms. Stefforia stated that the applicant had the option of seeking a text change; however, she was not sure that the Planning Commission would support a change given the treatment of home occupations in other municipal ordinances.

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

Mr. Loy moved to deny the variance with the following reasoning:

 

(1) That conformance with the Ordinance was not unnecessarily burdensome. The applicant could conduct a home occupation at the site in compliance with Ordinance provisions. Further, there was residential use of the site without variance.

(2) The substantial justice would be denied by granting the variance in that other similar applications had been denied.

(3) There were no unique physical circumstances preventing compliance with the Ordinance.

(4) The hardship was self-created in that the applicant had not consulted the Township prior to establishing the business on site.

(5) That a variance would be contrary to the spirit and intent of the Ordinance due to the size of the proposed business, the number of employees, and the fact that it would be conducted in an accessory building.

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

ADJOURNMENT

There being no further business to come before the Board, the meeting was adjourned at 4:40 p.m.

OSHTEMO CHARTER TOWNSHIP
ZONING BOARD OF APPEALS