Zoning Board of Appeals

AGENDA ZONING BOARD OF APPEALS MEETING Date: Tuesday, August 8, 2023 Time: 4:00 P.M. Where: City Hall, Room 301 1. Call to Order 2. Attendance 3. Additions or Deletions to the Agenda 4. Unfinished Business 5. New Business A. Z04-23 (575 Lakeview Ave) Petition from Sarah Wilson for property located at 575 Lakeview Ave, Battle Creek, MI. Requesting a dimensional (non-use) variance for a swimming pool located nearer than 6 feet to a side lot line. Pursuant to section 1260.01 for the Zoning Parcel #3630- 07-609-0. 6. Approval of Minutes- June 13, 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  CITY OF BATTLE CREEK ZONING BOARD OF APPEALS 10 North Division, Battle Creek, MI 49014 MINUTES FOR MEETING June 13, 2023 MEETING CALLED TO ORDER: By Chairperson Moreno at 4:00 p.m. 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, Melody Carlsen, Zoning Administrative Assistant, Darcy Schmitt, Planning Supervisor, Marcel Stoetzel, Deputy City Attorney. NEW BUSINESS: A) Z03-23 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. Staff Presentation: Travis Sullivan gave the staff report for 604 W Territorial Road. 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. Given the information provided by the applicant and the above considerations, staff regretfully must recommend denial of Z03-23. Correspondence: Correspondence read by Melody Carlsen. In response to the Public Hearing Notice mailing, staff received two correspondence; an anonymous letter and a letter form 595 W. Territorial Road. Applicant Presentation: Gloria Szakacs of 604 W Territorial Road was present to speak and answer questions from Commissioners. 1  Questions from Commission: Norris Lindsey asked Ms. Szakacs why she did not apply for a permit before building the wall in question. Public Comment: Joyce Crouch of 19681 Wabash Road, spoke in favor of item #Z03-23. Michael Delaware: asked for clarification to whether a permit was applied for before the wall was erected or after. MOTION MADE BY NORIS LINDSEY TO FOR THE APPROVAL OF APPEAL Z03-23. SECONDED BY BILL HANNER. Internal Board Discussion: James Moreno could not support this variance request due to proper processes not being filed. Michael Delaware concerns proper processes were not followed and stated he physically drove by the location for better understanding. Leaning toward the staff recommendation of disapproval. Chris Rogers commended the applicant on her work in the City and with children. Inclined to vote against the request because it does not meet requirements. ROLL VOTE: CHAIRMAN JAMES MORENO NO COMMISSIONER MICHAEL DELAWARE NO COMMISSIONER BILL HANNER NO COMMISSIONER NORIS LINDSEY YES COMMISSIONER CHRIS ROGERS NO COMMISSIONER JANINE REED NO COMMISSIONER REAGAN SMITH NO ATTENDANCE: Chair Moreno asked for attendance to be noted. UNFINISHED BUSINESS: None. APPROVAL OF MINUTES: May 9, 2023 MOTION MADE BY BILL HANNER TO APPROVE THE MAY 9, 2023 MEETING MINUTES. SECONDED BY CHRIS ROGERS. ROLL VOTE: All in favor to signify by saying “aye”: Approved. COMMENTS BY THE PUBLIC: None. COMMENTS BY STAFF AND COMMISSION MEMBERS: ADJOURNMENT: Chairperson Moreno adjourned the meeting at 4:27 p.m. Submitted by: Melody Carlsen, Administrative Assistant, Planning and Zoning 2  Battle Creek Zoning Board of Appeals Staff report - August 8, 2023 Meeting To: Zoning Board of Appeals From: Susan C. Cronander Date: July 28, 2023 Subject: Variance Request: Z04-23 Petition from Sarah Wilson, owner, for the property located at 575 Lakeview Ave, Battle Creek, MI. Requesting a dimensional (non-use) variance for a swimming pool located closer than the required 6 feet to a side lot line. Pursuant to section 1260.01 General Provisions Accessory Buildings and Uses for the Zoning Parcel #3630-07-609-0. Legally described as: PLAT OF GREENLAWN LOT 109 Summary of Request The Applicant is asking to continue to allow an existing swimming pool currently located 3 feet 6 inches from the east side property line to remain in the same location. The general provisions of the City’s Zoning Ordinance requires that swimming pools, hot tubs, and Jacuzzis shall not be nearer than 6 feet from the side or rear lot line. Background Information 575 Lakeview Avenue is located in a T-3 Neighborhood Commercial zoning district and lies across the street, Lakeview Avenue, from R-1B Single Family Residential. The current use of the subject property is single family residential. The subject property is .138 of an acre or 6,011.28 square feet. The property is 50 feet in width, typical of residential parcels in this area, is relatively flat, without water features, and does not appear to have any utility easements. The following is a timeline of events prior to the Applicant requesting a variance from the 6-foot side setback. 1. March 31, 2022 Inspections sent the Applicant for this petition a notice regarding no record of a permit for a pool. 2. May 5, 2022 The Applicant submitted a permit application for the pool without a plot plan showing location. 3. May 6, 2022 Inspections asked the Applicant for a plot plan showing location of the pool, height, and distances to property lines. 4. May 11, 2022 A pool permit was approved based on the plot plan submitted for the permit application (Figure 3) by the Applicant. 5. November 8, 2022 Inspections sent a letter to the Applicant stating pool permit was expiring and that no field inspection had been requested (letter attached to this report.) 6. November 29, 2022 Inspections sent a letter to the Applicant stating that the pool permit had expired (letter attached to this report), and that the Applicant could request a permit extension. 10 N. DIVISION ST. P.O. BOX 1717 BATTLE CREEK MICHIGAN 49016-1717 PHONE (269) 966-3320 FAX (269) 966-3555 WWW.BATTLECREEKMI.GOV  Petition Z04-23 575 Lakeview Ave Parcel #3630-07-609-0 7. December 7, 2022 Inspections approved an extension request for the Applicant. 8. May 31, 2023 Inspections denied approval of the pool upon field inspection due to the pool being within the required 6-foot side setback, and electrical issues. Inspections requested that the pool be moved. (Photos 1 -2) 9. July 13, 2023 Applicant applied to the Zoning Board of Appeals for a variance from the 6-foot required side setback for pools. Figure 1: 575 Lakeview Avenue - aerial view. The subject property is identified with a yellow star and is outlined in turquoise. Figure 2: 575 Lakeview Avenue is zoned T-3 Neighborhood Commercial. Property identified with a yellow star. 2  Petition Z04-23 575 Lakeview Ave Parcel #3630-07-609-0 Figure 3: Plot plan for pool location submitted for the permit application that was approved on May 11, 2022. Photo 1: Current distance of subject pool from the east side property line, as measured by City Inspections. 3  Petition Z04-23 575 Lakeview Ave Parcel #3630-07-609-0 Photo 2: Backyard view of the property and pool that are the subject of this petition. Public Hearing and Notice Requirements An advertisement of this public hearing was published in the Battle Creek Shopper News on Thursday, July 20 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 property owners and occupants located within 300’ of the subject parcel. As of the writing of this report, we have not received any calls or correspondence commenting on this application. Variance Request and Analysis The Applicant is requesting to continue to allow an existing swimming pool currently located 3 feet 6 inches from the east side property line to remain in the same location. The general provisions of the City’s Zoning Ordinance requires that swimming pools, hot tubs, and Jacuzzis shall not be nearer than 6 feet from the side or rear lot line. Staff has reviewed the petition and the property and does not find a hardship such as slope, water features or easements peculiar to the subject property that would only allow the pool to be placed within the subject property’s required 6-foot east side setback. The subject property is 50 feet in width, not unduly narrow and typical of other adjacent residential parcels. In addition, the Applicant has not provided any evidence for a hardship to the land that is peculiar to this property. The Applicant instead lists on their ZBA application the setback dimensions to the garage and sidewalk, stating that the pool will not fit between the east side property line and the sidewalk and garage without being located within the required 6-foot side setback. The original plot plan submitted with the pool permit application has measurements indicating that the pool will meet the side setback requirement. Granting the dimensional variance that is the subject of this petition without an identified hardship peculiar to the subject property could set a general precedent throughout the City. Therefore, staff is recommending denial of this request. 4  Petition Z04-23 575 Lakeview Ave Parcel #3630-07-609-0 Applicable Zoning Ordinance Provisions CHAPTER 1260 General Provisions 1260.01 ACCESSORY BUILDINGS AND USES. (e) Location. (6) Swimming pools and hot tubs shall not be nearer than six feet from the side or rear lot line. No swimming pool or hot tub shall be in any primary front yard. 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. 1. When it can be shown that a practical difficulty would, in fact, exist if the strict non-use requirements of this Zoning Code (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. 2. 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 conformance with the requirements of this Zoning Code by simply relocating or redesigning the structure(s), then a variance shall not be granted. 3. A variance shall not be granted when it will alter or conflict with the intent of this Zoning Code 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. 4. Any variance granted shall be the minimum necessary to provide relief for the practical difficulty of the applicant. 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 cannot be justified in an affirmative manner. The finding for each condition is provided below and planning staff recommends that the Zoning Board of Appeals deny the dimensional variance request (Z-04- 23) for an existing swimming pool to be located within the required side setback of the subject property based on the findings contained in this staff report. 5  Petition Z04-23 575 Lakeview Ave Parcel #3630-07-609-0 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. In their application, the Applicant offers the fact that the pool meets all of the other required setbacks. The fact that the pool meets the other required setbacks is not a hardship peculiar to the land. Staff does not find evidence of a hardship to the land for the subject property and the Applicant has not offered evidence of a hardship. B) Staff finds that the practical difficulty is not exceptional and peculiar to the subject parcel, is self- imposed, and that the conditions associated with the property generally do exist throughout the City. In their application, the Applicant states that the sidewalk, driveway and garage preclude the pool from being located so that the pool meets the required 6-foot side setback. Unfortunately, the location of the other property improvements is a self-imposed restriction. For the reasons stated in the previous paragraph, staff believes the Zoning Board is justified in denying the requested variance, as no actual hardships exist for the subject property. C) Staff finds that if the variance is granted that the intent of the Ordinance will be altered because there are not any conditions peculiar to the subject property. Granting the dimensional variance that is the subject of this petition without an identified hardship peculiar to the subject property could set a general precedent throughout the City. D) Staff finds the Applicant’s requested location does not fulfill the requirement for the minimum necessary variance to provide relief for the practical difficulty of the applicant. Attachments The following information is attached and made part of this Staff Report. 1. ZBA Petition Form (Petition #Z-02-22) and plot plan submitted with Petition Form 2. Notice of no permit letter – 3/31/2022 3. Permit expiring letter – 11/8/2022 4. Permit expired letter – 11/29/2022 6  CITY OF BATTLE CREEK 10 N. Division Street, Room 117 Battle Creek, MI 49014 269.966.3387 NOTICE 3/31/2022 WILSON, SARAH L 575 LAKEVIEW AVE BATTLE CREEK, MI 49015-3310 Re: 575 LAKEVIEW AVE– ABOVE GROUND POOL – NO PERMIT(S) I have observed that an Above-ground pool has been installed – No record of permits or inspections, at 575 LAKEVIEW AVE which requires a building permit. Please submit your permit application within Ten (10) calendar days from the date of this notice for processing – APRIL 8, 2022.  Zoning – 1260.01 – (e) Location (1) Accessory buildings shall not be erected in the front yard of a lot or parcel, unless otherwise provided herein. In accordance with Section 1241.07(b) of this zoning code, front yards are located adjacent to all street frontages for parcels having frontage on two or more streets. Parcels having frontage on a lake, brook, stream, river or other watercourse shall be allowed an accessory building in the waterfront front yard provided it observes front and side yard setbacks required for the main residential building. (2) Accessory buildings may be erected in the side or rear yard, as regulated herein: (6) Swimming pools shall not be nearer than six feet from the side or rear lot line or from any house, building or residence. No swimming pool shall be in any front yard.  Building issues - 2015 Michigan Residential Code SECTION R326 SWIMMING POOLS, SPAS AND HOT TUBS R326.1 General. The design and construction of pools and spas shall comply with the International Swimming Pool and Spa Code. • R105 building and electrical permits required for pools in ground and above ground pool greater than 24”, hot tub/spa and an approved safety cover is required • Must have final inspection and approval prior to pool being used  Pool barrier/fence – Pool less than 48” in height must have an approved fence or barrier  OR take down and removed Additionally, failure to respond within 10 days of this notice may result in civil or other court ordered remedies. Your prompt attention to this matter is greatly appreciated. Respectfully, Don Wilkinson Building Official  CITY OF BATTLE CREEK 10 N. Division Street, Room 117 Battle Creek, MI 49014 269.966.3382 SARAH L WILSON, 575 LAKEVIEW AVE BATTLE CREEK, MI 49015-3310 11/08/2022 Re: PBR22-00191, 575 LAKEVIEW AVE – FINAL INSPECTION REQUIRED Dear Permit Holder/Property Owner: A review of our records indicates that the referenced permit will expire on 11/07/2022. If your project is completed, please contact us to schedule an inspection so that we may close the permit. If you are not yet complete you may submit a written request for an extension to our office prior to the expiration date. The granting of the extension will be reviewed upon its receipt. Extensions may not exceed 180 days. Requests for an extension may be submitted in the following: In Person – City Hall, 10 N. Division Street, Suite 117 Fax – 269.966.3555 Email – inspection@battlecreekmi.gov If you have questions regarding this notice, please contact us for assistance. Sincerely, City of Battle Creek, Inspection Division  CITY OF BATTLE CREEK 10 N. Division Street, Room 117 Battle Creek, MI 49014 269.966.3382 FINAL NOTICE WILSON, SARAH L 575 LAKEVIEW AVE BATTLE CREEK, MI 49015-3310 11/29/2022 Re: PBR22-00191, 575 LAKEVIEW AVE – FINAL INSPECTION REQUIRED FOR POOL Dear Permit Holder/Property Owner: A review of or records indicates that the referenced permit(s) have expired.  THE PERMIT HAS EXPIRED AND NO FINAL INSPECTIONS HAVE BEEN CONDUCTED-A STATUS INSPECTION IS REQUIRED IN ORDER TO VERIFY THE PROGRESS OF THE PERMIT.  PLEASE CONTACT THE INSPECTIONS DIVISION WITHIN 7 DAYS OF RECEIPT OF THIS LETTER TO REQUEST A PERMIT EXTENSION AND SCHEDULE THE INSPECTIONS. 269-966-3382  FAILURE TO COMPLY MAY RESULT IN A CIVIL INFRACTION BEING ISSUED. The granting of the permit extension will be reviewed after the onsite inspection is complete. Extensions may not exceed 180 days. Requests for an extension may be submitted in the following: In-Person City Hall, 10 N. Division St, Suite 117 Fax 269-966-3555 Email inspection@battlecreekmi.gov If you have questions regarding this notice, please contact us for assistance. Sincerely, DON WILKINSON City of Battle Creek, Inspection Division