Zoning Board of Appeals

ZONING BOARD OF APPEALS MEETING MINUTES July 12, 2016 4:00 P.M. CALL TO ORDER: Mr. John Stetler, Chairperson called meeting to order at 4:00 P.M. ATTENDANCE: Members Present: Deland Davis James Moreno Becky Squires Bill Hanner Carlyle Sims Mark Jones John Stetler Members Excused: Samuel Gray Staff Present: Marcel Stoetzel, Deputy City Attorney Glenn Perian, Senior Planner, Planning Dept. David Farmer, Zoning Inspector Leona Parrish, Admin. Assistant, Planning Dept. ADDITIONS OR DELETIONS TO THE AGENDA: None CORRESPONDANCE: None OLD BUSINESS: None OPENING COMMENTS: Mr. John Stetler, Chairperson stated the meeting procedure where everyone present may speak either for or against an appeal and that he will ask for a staff report to be read and then open the public hearing. At the public hearing, persons may come forward and state their name and address for the record as it is being recorded and then speak either for or against an appeal. The public hearing will then be closed and the zoning board will discuss and make a decision. Mr. Stetler stated if denied the petitioner may appeal to the Circuit Court. NEW BUSINESS: A. Z-03-16 (106 Lathrop Ave.): Petition from Ms. Precious B. Holder, P.O. Box 4303, Battle Creek, MI 49016, requesting a use variance to allow a three-unit residential use in a Legal Non-Conforming two-unit residential property zoned “R-1C Single Family Residential District”. The permit application is requested pursuant to Planning and Zoning Code, Chapter 1288.04 and 1248.02. Mr. Glenn Perian stated the report addresses the re-application petition from Precious Holder, seeking approval of a Use Variance (Z-03-16) to allow three residential dwelling units in a R-1C Single Family Residential district, when only two units are permitted as legal nonconforming units at 106 Lathrop Ave. This exact request was brought before the ZBA in May of 2015, and the request was denied. The appellant has re-applied according to the Zoning Board of Appeals By-Laws, Article VIII, Section 7, which says in part, a request that was denied may be resubmitted after one year has passed. 1 of 7  Zoning Board of Appeals July 12, 2016 Minutes Page 2 of 7 Mr. Perian said this particular re-application is virtually identical to the appeal the ZBA heard in May 2015. The only facts of the appeal that have changed is the time period between appeals and the ongoing legal proceedings relating to this case. The City is still trying to get the applicant to bring the property into compliance by removing the third residential unit in the building that was denied by the Zoning Board in May of 2015. Because staff believes the facts of this appeal have not changed since the May 2015 the recommendation for this appeal is to deny the request, as it was last May, 2015. Mr. Perian stated Planning staff has reviewed the standards outlined by statute and ordinance and it is the opinion of staff that the appellant has not met the standards and recommends denial of a Use Variance (Z-03-16). Noted the following: A) Staff believes the building; structure or land can reasonably be used in a manner consistent with the uses allowed in the R-1C Single Family Residential zoning district as it was originally constructed as a single family home. The addition of a second unit was done in accordance with the zoning regulations of that time and can continue to exist and be occupied. Therefore, the building can be used in accordance with current zoning regulations. B) Staff has not found anything unique about the property to satisfy this standard nor did the applicant provide anything in the application packet that they believe show unique conditions associated to the property. C) Staff finds the proposed additional unit inconsistent with the current zoning district that allows single family uses and the future land use map which also indicates this area being single family. Therefore, the variance, if granted would alter the essential character of the neighborhood and the intent of the master plan. D) Staff does not find any immediate hardship to the property as it still can be used in compliance with zoning regulations with the additional legal nonconforming second unit. Mr. Perian stated for the reasons noted and those listed in the staff report, we recommend denial of appeal Z-03-16 and would like to remind the board members that this is a use variance request and would require a concurring vote of 2/3 or five members is necessary for approval. Ms. Precious Holder, 11 Arlington Avenue, Battle Creek, MI, property owner came forward to speak. Stated last year when she came before the panel she did not know it required two-thirds vote and the vote came in 4 to 3 and Mr. Stetler congratulated her and had won the right to have the apartment unit and to find out that it took a 5 to 2 vote and was not aware until leaving that her appeal had not passed. Said this property has not been occupied since the decision, in compliance and stated this is a lot different than the last application and went through and put down the history of the apartment building as they had spoken about before as it was purchased by her family in 1991 as a 3-unit apartment building and was occupied by all three units at that time. Said before this time it had always been a 3-unit as far as they were aware before it went up for sale. Noted that afterword Code Compliance came in and do the easement to comply with the safety issues. Stated she reached out to the Neighborhood Planning Council and was told they would be able to help or assist her by Ms. Quiqq and she in turn wanted her to reach out to Mr. Moreno and had not received a return call. Ms. Holder stated she wanted to invite the board to go by and see the apartment; since that did not happen she did take the initiative to take photos and has pictures with her today. Stated it had been certified by the city since 2005 earlier and has always been in compliance. Said this apartment had not been a nuisance or a drug house and that her application complies with the police department and if there is a  Zoning Board of Appeals July 12, 2016 Minutes Page 3 of 7 problem on the property, she as a landlord would open the door for the officer. Said the tenants sign before they go in and on one occasion she did have it happen; never had any problems. Said they selectively choose their tenants as her sister lives next door at 104 Lathrop Avenue. Stated she had a petition with her that is signed by 37 neighboring properties, with their addresses in agreement with having the apartment allowed. (provided a copy of signatures & apartment photos she had taken). Ms. Precious Holder stated this is her income property to live by as she is handicapped and does not get SSI or Social Security and does seek to be employed and run her apartment building; the 3-units very much matter to her as far as her lively hood and living as it is her income. Noted she keeps it approved according to Code Compliance as noted on the certificate in meeting packet from them for the past 10 years. Stated this property has been used as 3-units for 30 years and is one of the best two houses on the block; is near a school and one of the persons that signed the petition is from the school because it houses children as well. Said it has always been multi-racial with both black and white in the apartment building at all times and helps people to get along with each other and keeps the peace. Ms. Precious Holder said she thinks she has been a very good landlord and to not grant the variance; noted that others in the neighborhood are multiple units not registered and hope it passes and be granted for her income. Said the photos provided were taken today. Said as a landlord in the community, she has to always comply and that many of the houses in the neighborhood have been torn down and there is a need for rental housing and is asking the board to approve her variance appeal; to conform it would be a problem only because when you give people extra room, which would be a lot of room for the other apartments it creates problems as you have everybody moving in and more space and they do not get along as well. Said she mentioned it to her other tenants when she moved the door to be in compliance and removed the stove; it has been empty for one-year and it causes her to lose control of controlling the building as to how many are in the unit and as a landlord in Battle Creek she has always tried to comply and hoping her actions speak louder than words. Stated she has an open the invitation to anyone to come and see the property; and hoping with the petition that the variance be granted. Ms. Precious Holder said with the Post school closed it makes the housing more essential as the school is near and a lot of the homes have been torn down. Said in the immediate block there are two houses that are abandoned that were up for tear-down and the one next to her property is also up for tear-down and is really gross and should have been torn down long ago; this shows a need for more housing for community and they see her effort and the variance be granted, thanked the board for their time. Mr. Carlyle Sims asked if there are enough off-street parking spaces for three-units. Ms. Holder stated yes, she has a three car garage in back and there is space to park behind each other. Mr. Mark Jones asked if this property had a shared driveway. Ms. Holder stated no, it is not. Ms. Arletha Holder, 104 Lathrop, sister of the applicant and is here on her behalf; stated this property has been in family for many years and went with her to get the petition signed and there are so many apartments (3, 4, and 6 units) in the neighborhood. Said this property has been a 3-unit for many years and is kept nice for her tenants inside and outside and over the years Code Compliance has been there (different ones and different landlords) and said it was very, very nice. Stated to take the unit from three to two units and is asking for it to be allowed for three-units the same as what is in the neighborhood.  Zoning Board of Appeals July 12, 2016 Minutes Page 4 of 7 Mr. Jeremy Holder, 104 Lathrop, said he is asking for this variance to be allowed for three-units as it is taken care of very well and filters her tenants, which are all good and is in compliance with police, etc. Stated when they were getting the signatures they had support from the neighbors as they choose good renters and do not let anyone rent; is asking for it to please be approved for three-units. Ms. Precious Holder wanted to add that she has a joy for this apartment building as she had lived in every apartment within it and would not rent anything that she would not live in herself. Said she is not there now as she had lived in the upstairs apartment and now cannot climb the stairs. Stated when it was three-units she had the liberty of if it was vacant and her sister had breast cancer and she wanted to be close to her and was able to stay in the apartment to be able to be near, which worked out great and was her home also. Ms. Holder said she has always had that option being a property owner for 30 years and would like that option as well and to keep her income. Mr. John Stetler stated he did have the opportunity to drive by the property and it is painted nicely and assume her tenants have done that also; they try to stay informed as possible, so congratulations. Ms. Precious Holder stated she does see Jason Francisco sitting in the room and he would say if there was something she had to do; she does it. Mr. John Stetler asked if there was any further discussion, seeing none he would entertain a motion. MOTION WAS MADE BY MS. BECKY SQUIRES TO APPROVE APPEAL #Z-03-16 FOR AN USE VARIANCE; TO ALLOW A THREE-UNIT RESIDENTIAL USE ON A LEGAL NON-CONFORMING TWO-UNIT RESIDENTIAL PROPERTY ZONED “R-1C SINGLE FAMILY RESIDENTIAL DISTRICT”, LOCATED AT 106 LATHROP AVENUE; SECONDED BY MR. JAMES MORENO. Discussion: Mr. Carlyle Sims asked staff regarding 36 Lathrop and 65 Lathrop noting they all say three-units; if so are they certified rentals. Mr. Glenn Perian stated the Zoning Inspector Mr. David Farmer is here today and may have some information regarding those units. Mr. David Farmer, Zoning Inspector, stated 36 Lathrop is a three-unit in an “R-2 Two Family Residential Zone” and is a Legal Non-Conforming property found under a zoning review of which is done in the same manner as was done for 106 Lathrop Avenue. Stated it was found it was a three-unit when it was zoned as a three-unit and had never changed; therefore, it is grandfathered or is a Legal Non-Conforming. Mr. Farmer asked what the address was for the other property. Mr. Carlyle Sims stated there were a lot of units and if they are not certified and they approve this one; they will be setting a precedence, which is his concern. Mr. Farmer referenced the report that Ms. Holder stated all the properties had received a variance. Noted he had not found where any of the thirteen properties noted had received a variance and 10 properties were zoned and allowed as 3-units; two have no records found or if the address exist; and one that is not a registered rental of which he was glad to have found; therefore, it had not had a zoning review to tell if it is legal or not to be what it is. Stated of the 10 properties, six were legal non-conforming meaning they existed as what they were before the zoning was changed and had a continuous use and/or  Zoning Board of Appeals July 12, 2016 Minutes Page 5 of 7 grandfathered; four of the ten were good because they are zoned to be what they are as there is several different residential zones within the block areas around the Post Addition. Noted that none of the 13 properties noted on the list had received a zoning variance. Mr. Mark Jones asked Mr. Farmer to list the history of each of the thirteen properties. Mr. Farmer spoke and noted the history of all the properties. Mr. Mark Jones asked staff when 106 Lathrop was originally zoned as “R-1C Single Family Residential”. (Time was spent looking through documents) Mr. Jones said that without a doubt we know that in 1953 it was zoned “R-1C Single Family Residential”. Mr. David Farmer stated in 1953 it was zoned “R-2 Two-Family Residential” and had a building permit that allowed a recreation room addition with a bathroom, sink and kitchen facility in the basement and was clearly noted on that application that it was not to be used as dwelling unit and this property was zoned “R-2” and three-units would be permitted for that property. Said he is not aware when it began to be used as a third-unit that the variance is now being requested. Mr. Deland Davis stated it appears to him with this list and Mr. Farmers discussion of it that this piece of property is very similar to these and was built as a single family dwelling before it was grandfathered in as many others and after the zoning changed a third apartment was added the others also and was required to reduce when reviewed. Ms. Becky Squires asked Mr. Perian regarding the staff report notes the city is trying to bring this property into compliance and the applicant stated she is not currently using the third-unit. Mr. Perian stated Mr. Farmer and Mr. Francisco have been working with the city attorney’s office and they have more information available. Mr. Perian stated they had issued a ticket because of the 3-units and could only have 2-units; which that issue has not been resolved as yet. Mr. James Francisco, Code Compliance Manager stated they only had allowed two-units in the past and is currently at the court system with a Show Cause Hearing that was scheduled today and had been canceled because of this hearing. Said Ms. Holder had been issued a few letters giving three specific ways to eliminate the third apartment and to bring into compliance; owner has not allowed staff to inspect the property. Stated Judge Franklin Line for every day that apartment existed there would be an additional $50.00 a day fine; which it has been one-year since and they had tried on two separate occasions to conduct an investigation to see if the apartment had been eliminated and was not and to this date he does not believe Ms. Holder had asked for a compliance inspection to prove it has been brought into compliance, so to say it is in compliance today is not 100% true. Ms. Becky Squires asked to confirm that they have tried to have Ms. Holder comply and had not as yet. Mr. Francisco stated, that is correct. Mr. Mark Jones asked being new on this board, if this was two separate issues of code compliance with rental registration and not being a zoning boards issue. Mr. Stetler stated that was correct, their only concern is if they are going to allow a 3-unit building on this property.  Zoning Board of Appeals July 12, 2016 Minutes Page 6 of 7 MR. JOHN STETLER ASKED FOR ANY ADDITIONAL COMMENTS, SEEING NONE A VOTE WAS TAKEN; ALL OPPOSED BASED ON THE FINDINGS AND AGREEMENT WITH THE STAFF REPORT; NONE IN FAVOR, MOTION DENIED. Mr. Stetler noted that this application has been denied. Ms. Precious Holder stated they had complied with Code Compliance. Mr. Stetler stated the Zoning Board only deals with zoning issues of how many units are allowed. Ms. Holder stated it should have been grandfathered. Mr. Marcel Stoetzel, Deputy City Attorney, asked Chairperson Mr. Stetler if there was a copy provided by Ms. Holder of the signed petition available to be kept with today’s meeting notes for the record. Mr. Glenn Perian made a copy of the petition and photos for today’s meeting files. APPROVAL OF MINUTES: MOTION MADE BY MS. BECKY SQUIRES TO APPROVE THE APRIL 12, 2016 ZONING BOARD OF APPEALS MINUTES AS SUBMITTED; SECONDED BY MR. CARLYLE SIMS. VOTE ON MINUTES APPROVAL: ALL IN FAVOR; NONE OPPOSED; MINUTES APPROVED. COMMENTS BY THE PUBLIC: None COMMENTS BY THE MEMBERS / STAFF: Mr. Carlyle Sims thanked staff for the work done on the reports provided for today’s meeting in a timely manner; so they are able to visit the properties prior to the meeting. Ms. Becky Squires noted that Vice-Mayor Baldwin had shared information regarding the church sign on the corner of Helmer Rd., that had been denied to not be allowed and had been still operating. Said she was told the current ordinance is being reviewed for a change in the sign ordinance and the church had been told to turn it off until the city revised the sign ordinance. Stated it would have been nice to have informed the zoning board so they could have been kept in the loop as to what was happening as they had been receiving a lot of static from the public regarding the board making a decision and nothing happened. Mr. James Moreno stated regarding today’s application he had been contacted by Ms. Holder and since her petition was being presented to this board; he felt it would have been inappropriate for him to have had discussions with the applicant and that was the reason for not returning her call. Mr. Stetler asked if this was within Mr. Moreno’s Neighborhood Planning Council. Mr. Moreno stated yes and they had not been approached publicly; so therefore he felt it would have been a private conversation; which is not in keeping with how they are to conduct their affairs on this board. Mr. Mark Jones stated he was new to this board and to Ms. Holders appeal today. Said in looking at the city’s north-side the laws had been ignored for 20, 30 years to the detriment of his neighborhood. Said  Zoning Board of Appeals July 12, 2016 Minutes Page 7 of 7 to him it was not legal to have 3-units in 1953 and there has been no change in law and know it happened in reality and had been ignored, which has hurt their city. Said he is very much a component to what was legal in the past and not just this is what we have done; because it has been very detrimental to the north-side to ignore the zoning laws and he wants Ms. Holder to understand it is not just her property; but the principal of turning it back to what was legal the last time known. Mr. Glenn Perian stated the zoning board appointed a new alternate member; introduced Mr. Mark Jones. ADJOURNMENT: Meeting was adjourned at 4:52 P.M. Submitted by: Leona A. Parrish, Administrative Assistant, Planning Department