Zoning Board of Appeals

AGENDA ZONING BOARD OF APPEALS MEETING Date: Tuesday, June 13, 2023 Time: 4:00 P.M. Where: City Commission Chambers Room 301 1. Call to Order 2. Attendance 3. Additions or Deletions to the Agenda 4. Unfinished Business 5. New Business A. Z-03-23 ZONING VARIANCE REQUEST: Petition from Gloria Szakacs for property located at 604 W Territorial Road, Battle Creek, MI 49015. Requesting a variance for a four-foot tall solid fence in the front yard. Pursuant to the City of Battle Creek’s Zoning Ordinance Section 1260.02(d)(3), Parcel #8340-18- 017-0. 6. Approval of Minutes: May 9, 2023 7. Comments by the Public: 8. Comments by the Members: 9. Adjournment: 10 N. DIVISION ST. P.O. BOX 1717 BATTLE CREEK MICHIGAN 49016-1717 PHONE (269) 966-3320 FAX (269) 966-3555 WWW.BATTLECREEKMI.GOV  Battle Creek Zoning Board of Appeals Staff report for the June 13, 2023 Meeting To: Zoning Board of Appeals From: Travis Sullivan, Planner Date: June 6, 2023 Subject: Variance Request: Z03-23 Petition from Gloria Szakacs of 604 W Territorial Rd., requesting to keep and receive a permit for a flower wall which does not meet the 50% minimum transparency requirement in a front yard as prescribed by Section 1260.02 Fences of the Zoning Ordinance. Summary The applicant, Ms. Gloria Szakacs, has applied for a nonuse (dimensional) variance to allow for the continuation of a flower wall which has been constructed in the front yard of the property at 604 W Territorial Rd. and which does not meet the required 50% transparency as prescribed in Section 1260.02 (D.2) of the Zoning Ordinance and which is located in the R-1B Single-Family Residential zoning district. The wall which is the subject of this application has been constructed in the front yard of the corner lot located at 604 W Territorial Rd. At present, in the absence of the nonuse variance providing relief from the provisions of Section 1260.02, staff is not authorized to issue a zoning permit for the wall, as the structure does not consist of a surface with at least 50% transparency. For purposes of the Zoning Ordinance, Section 1230.06 (Definitions) defines the term “fence” as follows: Fence – A vertical structure forming a barrier, or a group of bushes or shrubs aligned in such a way to form a barrier, on either the whole or any portion of a given area. Given the above definition, it is reasonable to deduce that the structure which is the subject of this application would be regulated by the provisions of Section 1260.02 (Fences).  Petition No. Z03-23 604 W Territorial Rd., #8340-18-017-0 Figure 1: Zoning districts of the subject site and surrounding area. Blue star indicates the parcel that is the subject of this application. The subject property and all immediately surrounding areas are zoned R-1B Single-Family Residential. Background/Project Information The subject property is located at 604 W Territorial Rd. and includes a single parcel with an area of 0.156 acres. As has been previously stated, the applicant is seeking relief from the provisions of Section 1260.02 (Fences) of the Zoning Ordinance in order to apply for a zoning permit for the recently constructed wall structure in the front yard of the property at 604 W Territorial Rd. During the month of April 2023, it was brought to the attention of Planning and Zoning staff that said wall or portion of a wall had been constructed, but that the property owner had not sought the required permit prior to construction. Given these circumstances, City of Battle Creek building officials posted a Notice of Intent to Issue a Stop Work Order on the structure on April 14. The notice informs a party that a permit is required for the continuation of the project, with directions on how to obtain a permit, as well as potential remedies at the City’s disposal should a permit not be successfully applied for and issued. Upon receiving the notice, the property owner (Ms. Szakacs) contacted the Community Services division to discuss the permitting process. During these conversations, Planning and Zoning 2  Petition No. Z03-23 604 W Territorial Rd., #8340-18-017-0 officials explained to Ms. Szakacs that the structure did not possess the required 50% transparency for a fence structure in a front yard. Further, staff also expressed concern that the fence as a whole (or portions of the fence) may exceed the maximum height of four feet in the front yard of a residential zoning district. Finally, staff also informed Ms. Szakacs of concerns with the fact that the fence structure was likely located within 25 feet of a corner property line at a street intersection, potentially creating a visual obstruction for traffic traveling along the right-of-way. Given these concerns, Ms. Szakacs was informed that staff did not possess the authority to issue a permit for the structure, and that options going forward included either the removal of the structure or an application to the Zoning Board of Appeals seeking a nonuse variance. Ms. Szakacs has elected to pursue the variance process. Please see Figure 2 below for an aerial view of the site. While not visible in aerial imagery, the location of the wall lies between the southeast corner of the house and the intersection of the right- of-way lines of Territorial Rd. and Lavista Blvd. Figure 2: Aerial view of the subject site at 604 W Territorial Rd. Subject parcel (8340-18-017-0) is outlined in teal. 3  Petition No. Z03-23 604 W Territorial Rd., #8340-18-017-0 Section 1262.02(D,E) addresses fence regulations applicable to this application as follows: Public Hearing and Notice Requirements An advertisement of this public hearing was published in the Battle Creek SHOPPER NEWS on May 25, 2023, not less than the 15 days before the hearing as required by State Law and ordinance. Notices of the public hearing were also sent by regular mail to each of the 44 property owners and occupants located within 300’ of the subject parcel. As of the writing of this report, staff has received one anonymous comment in writing speaking against the proposed variance. No other correspondence related to the request has been received. 4  Petition No. Z03-23 604 W Territorial Rd., #8340-18-017-0 Variance Requested The applicant is requesting a nonuse variance for the continuation and future permitting of an existing concrete wall located in the front yard of the property at 604 W Territorial Rd. The property owner states in their application that the wall is intended for safety, and that a number of accidents have occurred recently in her front yard. The applicant states that the wall will help to protect children in her neighborhood. Section 1262.02 regulates fences generally within the City, with specific provisions for residential zoning districts. The variance requested by the applicant would allow for a fence of less than 50% transparency, and which potentially includes portions which exceed four feet in height, to be permitted in the front yard of the property at 604 W Territorial Rd. A more detailed description of the wall, as well as supplementary photographs along with the applicant’s complete appeal, are included within the meeting packet attached to this staff report. Applicable Zoning Ordinance Provisions Section 1280.03 “Zoning Board of Appeals”, subsection D. 2) states: 2) The Board shall have the authority to grant the following variations: a) Nonuse. If there are practical difficulties for nonuse variances relating to the construction, structural changes, or alterations of buildings or structures related to dimensional requirements of the zoning ordinance or to any other nonuse-related standard in the ordinance in the way of carrying out the strict letter of the zoning ordinance, then the Board may grant a variance so that the spirit of the zoning ordinance is observed, public safety secured, and substantial justice is done. The Board may impose conditions as otherwise allowed under the Michigan Zoning Enabling Act;…. 3) Variance Standards. In consideration of all appeals and proposed exceptions to or variations from this Zoning Code, the Board shall, before making any such exceptions or variations, in a specific case, first determine that the applicant has met all of the following conditions as set out for the specific type of variance requested: a) Nonuse (dimensional) Variances: i) When it can be shown that a practical difficulty would, in fact, exist if the strict non- use requirements of this zoning ordinance (e.g., lot area, width, setbacks, building height, etc.) were applied to a specific building project, the Board may grant a variance from these requirements. The practical difficulty from a failure to grant the variance must include substantially more than a mere inconvenience or a mere inability to attain a higher financial return. ii) The practical difficulty must be exceptional and peculiar to the subject parcel of land which do not generally exist throughout the City and may not be self-imposed or the result of an earlier action by the applicant. If the parcel of land could be reasonably built upon in 5  Petition No. Z03-23 604 W Territorial Rd., #8340-18-017-0 conformance with the requirements of this zoning ordinance by simply relocating or redesigning the structure(s), then a variance shall not be granted. iii) A variance shall not be granted when it will alter or conflict with the intent of this Ordinance considering the public benefits intended to be secured by this Zoning Code and the rights of others whose property would be affected by the allowance of the variance. iv) Any variance granted shall be the minimum necessary to provide relief for the practical difficulty of the applicant. Analysis Staff has reviewed the application and finds that the appeal does not satisfy standards i, ii, and iii pertaining to nonuse variance requests, as prescribed by Section 1280.03. Therefore, staff at this time regrettably does not have the ability to recommend approval of the applicant’s request. Staff therefore must recommend to the Zoning Board of Appeals denial of the applicant’s request. Findings and Recommendation The Zoning Board of Appeals can approve, approve with conditions, or deny this request. The Zoning Board of Appeals can also table or postpone the request pending additional information. In consideration of all variations from the Zoning Code, the Board shall, before making any such exceptions or variations, in a specific case, first determine that the conditions listed below are satisfied. Planning staff has reviewed these conditions and believes that each condition can be justified in an affirmative manner. Rationale for each condition is provided below and planning staff recommends that the Zoning Board of Appeals approve the dimensional variance (Z-06-22) request for the alteration of an existing dimensionally nonconforming building which involves the area and bulk of the building. A) Staff finds that in this instance, a practical difficulty would unfortunately not exist if the strict requirements of the ordinance are applied to this specific project and that a recommendation of approval cannot be made to the Zoning Board of Appeals. The property in question is located at the corner of W Territorial Rd. and Lavista Blvd., and is similar in nature to many corner lots throughout the City. While the intersection does contain a flashing light, staff does not find that a practical difficulty exists which is inherent to subject parcel (with regard to the parcel’s size, shape, physical characteristics, etc.) which would present a hardship unique to this specific property not generally observed throughout the rest of the R-1B zoning district, nor the City at-large. B) Staff unfortunately does not find that a practical difficulty exists that is exceptional and peculiar to the subject parcel. The subject parcel is similar in nature to numerous other corner lots located within the R-1B zoning district throughout the City. Further, staff finds that this request comes before the Zoning Board of Appeals as a result of earlier actions by the applicant (the construction of an unpermitted fence/wall). While the applicant would clearly prefer the current location of the wall, the applicant does possess ample space in the side/rear yard of the property to place a fence or wall of this nature in conformance with Section 1262.02 of the ordinance. 6  Petition No. Z03-23 604 W Territorial Rd., #8340-18-017-0 C) Staff believe that if the Board were to grant the proposed nonuse variance, such variance would conflict with the intent of this Ordinance considering the public benefits intended to be secured by the Zoning Code and the rights of other whose property would be affected by allowance of this variance. While likely located within 25 feet of the intersection of the W Territorial Rd. and Lavista Blvd. rights-of-way, staff does not feel that the wall in its current location creates an hazard with regard to the vision of those traveling along the right-of-way. However, aesthetically the wall does create an obstruction with regard to the view of neighboring properties which is intended to be protected by the provisions of the Section 1262.02. D) As staff unfortunately does not find a hardship inherent to the subject property which would require the continuation of the wall/fence structure, a baseline cannot be set in determining whether the request represents the minimum necessary to provide relief from a practical difficulty. Given the information provided by the applicant and the above considerations, staff regretfully must recommend denial of Z03-23, Petition from Gloria Szakacs of 604 W Territorial Rd. (Parcel #8340-18-017-0), requesting the continuation and future permitting of a flower wall which is located in a front yard and which does not consist of a surface of at least 50% transparency within a Residential zoning district as prescribed by Section 1262.02 Fences of the City of Battle Creek Zoning Ordinance. Attachments The following information is attached and made part of this Staff Report. 1. ZBA Petition Form (Petition #Z03-23) 2. Supplemental Photos and Documentation 7 9 of 28 10 of 28 11 of 28 12 of 28 13 of 28 14 of 28 15 of 28 16 of 28 17 of 28 18 of 28 23 of 28 24 of 28 25 of 28  26 of 28 CITY OF BATTLE CREEK ZONING BOARD OF APPEALS 10 North Division, Battle Creek, MI 49014 MINUTES FOR MEETING MAY 9, 2023 MEETING CALLED TO ORDER: By Chairperson Moreno at 4:00 p.m. ATTENDANCE: Chair Moreno asked for attendance to be noted. PRESENT: CHAIRMAN JAMES MORENO COMMISSIONER MICHAEL DELAWARE COMMISSIONER BILL HANNER COMMISSIONER NORIS LINDSEY COMMISSIONER CHRIS ROGERS COMMISSIONER JANINE REED COMMISSIONER REAGAN SMITH STAFF PRESENT: Travis Sullivan, Planner, Susan Cronander, Planning and Zoning Administrator, Melody Carlsen, Planning and Zoning Administrative Assistant, Darcy Schmitt, Planning Supervisor, Marcel Stoetzel, Deputy City Attorney. APPROVAL OF MINUTES: October 11, 2022 MOTION MADE BY COMM. ROGERS TO APPROVE THE MEETING MINUTES FOR OCTOBER 11, 2022 AS PRESENTED. SECONDED BY COMM. LINDSEY. ALL IN FAVOR, MINUTES APPROVED. ADDITIONS OR DELETIONS TO THE AGENGA: No additions or deletions. 2023 Calendar provided for review before item is brought to the Body for vote. UNFINISHED BUSINESS: None. NEW BUSINESS: A) Election of Officers Elections were opened by Board Member Chair Moreno. Board member Hanner nominated James Moreno for Board Chair. Seconded by Board member Rogers. Board member Moreno nominated Bill Hanner for Vice Chair. Seconded by Board member Delaware. ROLL VOTE: Chair Moreno asked everyone in favor to signify by saying “aye”: Approved. 1  27 of 28 B) 2023 Calendar Approval Board Chair Moreno opened discussion on the 2023 Calendar. Board member Delaware asked if the 2023 meeting dates were all on the second Tuesday of each month. Travis Sullivan replied that there were no special holiday that would warrant an alternative date. Calendar Accepted C) Z01-23 ZONING VARIANCE REQUEST: Petition from Signcraft for property located at 5550 Glenn Cross Rd, Battle Creek, MI 49015. Requesting a variance to allow exterior signs that are larger than allowed in MFR- High Density Multiple Family Residential. District. Pursuant to the City of Battle Creek’s Zoning Ordinance Section 1240.10 and Chapter 1263. Parcel #0636-42-093-0. Staff Presentation: Travis Sullivan, Planner, gave the staff report: Application from Signcraft on behalf of Bronson Behavioral Health hospital located at 5550 Glenn Cross Road. Requesting approval of two illuminated channel letter signs on the building that are larger than permitted in an MFR- High Density Multiple Family Residential district. The applicant is also proposing a new monument sign near the entrance to the parcel on the south side of the driveway off Glenn Cross Road. Staff recommends approval of Z01-23. Applicant Presentation: Rob Perrin of Burkett Signs Company, 15886 East MI Ave, Climax, was present to speak to and answer questions from Board members. Deb Rozewicz, CEO of Bronson Behavioral Health, 165 West Washington Avenue, Battle Creek, was present to speak on behalf of Bronson. Board Member Comments: Board member Delaware asked questions about the monument sign location and visibility from local traffic. Board member Lindsey asked for clarification on the type of sign, attached or free standing. MOTION MADE BY BOARD MEMBER DELAWARE TO APPROVE Z01-23 ZONING VARIANCE REQUEST FOR PROPERTY LOCATED AT 5550 GLENN CROSS ROAD, SECONDED BY BOARD MEMBER ROGERS. ROLL VOTE: ALL IN FAVOR, MOTION APPROVED. D) Z02-23 ZONING VARIANCE REQUEST: Petition from Calhoun County Land Bank Authority for property located at 356 E Burnham Street, Battle Creek, MI 49014. Requesting a variance from the 100 foot lot depth requirement in order to proceed with a proposed division. Pursuant to the City of Battle Creek’s Zoning Ordinance Section 1240.21 (7). Parcel #3230-00-018-0. Board Member Moreno disclosed his connection between the Post Foundation and Calhoun County Land Bank. May conduct the hearing but recused himself from any discussion and voting on this item. 2  28 of 28 Staff Presentation: Susan Cronander, Planning and Zoning Administrator, gave the staff report: Application from Calhoun County Land Bank Authority, 315 W Green Street, Marshall, requesting a variance from the 100 foot lot depth requirement in order to proceed with a proposed land division. The applicant wishes to divide parcel # 3230-00-018-0 at 356 E Burnham Street into two parcels. One of the child parcels from this proposed land division of 3230-0018-0 will be 99 feet in length instead of the 100 feet in length required by the City’s Zoning Ordinance for new parcels. Staff believes the Applicant’s request of one foot less in length than required by the City of Battle Creek Zoning Ordinance fulfills the requirement for the minimum necessary variance to provide relief for the practical difficulty of the application and recommends approval of Z02-23. Applicant Presentation: Angela Whitesell of Calhoun County Land Bank, 315 W Green Street, Marshall, was present to speak and answer questions from Board members. Board Member Comments: None. MOTION MADE BY BOARD MEMBER DELAWARE TO APPROVE Z02-23 ZONING VARIANCE REQUEST FOR PARCEL #3230-00-018-0, SECOND BY BOARD MEMBER SMITH. ROLL VOTE: ALL IN FAVOR, MOTION APPROVED. COMMENTS BY THE PUBLIC: None. COMMENTS BY STAFF AND COMMISSION MEMBERS: Board Member Hanner commended Staff on a good job with both of the reports presented. Board Chair Moreno welcomed new Board members and noted all seats were filled for the upcoming year and noted there will be alternate seats in the future to ensure all seats are filled for future Board meetings. ADJOURNMENT: Chairperson Moreno adjourned the meeting at 4:12 p.m. Submitted by: Melody Carlsen, Administrative Assistant, Planning and Zoning 3