Zoning Board of Appeals

ZONING BOARD OF APPEALS Regular Meeting Minutes - Tuesday, June 14thth, 2016 City Commission Chambers - City Hall 1. Introduction & Roll Call Chairman Darbee called the meeting to order at 7:00 p.m. Members present: William Darbee, Anthony Dier, Lonnie Dowd (alternate), Jan Rise & Julie Ulman. Members excused: Christopher Greenleaf Others: Scott McKillop, Community Development Planner & City Commission Liaison Larry Elliott. 2. Approval Minutes 3. Public Comment Not Related to Public Hearings None 4. New Business - Public Hearings Z16-06 - 2200 10th Street - Poultney residence Mr. Darbee stated the appellant Brian Poultney is requesting a variance from Section 122- 54(b) of the zoning regulations prohibiting decks in front yards. The appellant’s property has a 72.67 square foot deck in its front yard that extends 5’5” from the front wall of the ahis home toward the property’s front lot line. The appellant wishes to increase the size of the deck by 117 square feet and is requesting the variance to be able to do so. The staff report for this case indicates Section 122-53(a) of the zoning regulations permits decks in side and rear yards only. Section 122-54(b) permits stoops extending not more than five feet from the front wall of a home and not more than 30 square feet in size in front yards. The appellant’s deck is 42.67 square feet larger than permitted by Section 122- 54(b) of the zoning regulations. Mr. Darbee asked if someone was available to present the request. Appellant Brian Poultney described his request and indicated a variance is warranted for the following reasons: His property’s front yard has frontage on 10th Street, Tuscola and N. Trumbull. His family enjoys using the front yard because of its landscaping and shade trees. Mr. Darbee asked Mr. Poultney to describe his property’s rear yard. Mr. Poultney indicated the rear yard has 1 a shed, a detached garage, a vegetable garden, though no shade. Mr. Darbee asked the appellant if there was any reason other than “serenity” he could not construct a deck in the property’s rear yard. Mr. Poultney stated he and his family enjoy the front yard, there is no shade in the rear yard and they enjoy the front yard. Mr. Darbee asked if other ZBA members had questions for the appellant. Mr. Dier asked staff to discuss the decks appearing in the photos submitted with the appellant’s application for a variance. Staff indicated that deck depicted in photo 2 and concrete stoop depicted in photo three predate the subject zoning regulation. Staff stated the city has no records indicating a building permit was issued for construction of the deck depicted in photo 4 and that its date of construction is unknown. Staff described the history of the city’s adoption of the subject and short-lived predecessor zoning regulations governing decks and stoops in front yards. Staff stated Mr. Poultney’s existing deck exceeds the area limitation of the subject regulation. If the deck did not exist, the appellant would be able to construct a 30 square foot deck projecting five free from the front wall of the home. Mr. Darbee indicated the appellant’s desire to enjoy the property’s front yard is laudable, though provides no basis for granting a variance. Mr. Dier concurred with Mr. Darbee’s statement. He stated no evidence had been presented indicating the property is subject to physical limitations precluding compliance with the subject regulation, the appellant’s right to construct of a deck in the property’s rear yard and that granting a variance would extend a right not available to similarly situated property owners. Mr. Poultney stated the existing deck is difficult to use and enjoy and that increasing its size would enhance the appearance of the front yard. Mr. Dier reiterated his statement that the subject regulation does not prevent construction of a complying with the regulation and that the regulation would apply in the same manner to interior lots not having frontage on more than one street. He concluded by indicating Mr. Poultney is requesting a variance to do something not permitted by the subject regulation, though his property is not subject to any physical constraints precluding construction of a deck in compliance with the regulation. Mr. Darbee asked for additional comments from members. Mrs. Rise indicated the appellant has stated a variance is warranted because of the availability of shade in his property’s front yard. She stated that shade trees are not static. They can be damaged or felled by a wind story or other cause. The trees shading the appellant’s front yard are located in city-owned street rights-of-way and they could be cut down at any time changing the appearance of the front yard. She concluded by stating a deck may be constructed in the rear yard without need for a variance. Ms. Ulman pointed out that the existing deck is larger than permitted by the subject regulation. Mr. Darbee asked for additional comments. Mr. Dowd asked the appellant if there was a deck in his property’s rear yard. Mr. Poultney stated the rear yard had an at-grade patio, 2 though no deck. Mr. Dowd asked whether the patio could be shaded with a canopy. Mr. Poultney stated a canopy would provide shade. Mr. Darbee asked for additional comments or questions. There were none. He asked for a motion on the variance requested. Mr. Darbee summarized the facts of the case as presented: The property is a large in comparison 50 x 100 foot lots. Its front yard has frontage on three streets. The deck in question is larger than permitted by the city code and predates the subject regulation. The appellant wishes to increase its size beyond the size permitted by the subject regulation. Mrs. Rise pointed out the trees shading the front yard are within street rights-of-way. The property exhibits no physical characteristics preventing compliance with the regulation or construction of a deck in the property’s rear yard. Motion Mr. Darbee moved that a variance be denied based on the basis of following findings (verbatim transcription of motion): Based upon the statement of the facts the first standard is whether or not strict compliance with the zoning regulation is unnecessarily burdensome in this case to the applicant. I find the zoning ordinance is not, for the simple reason you build the desk, if desired, in the back yard. You can plant trees in the back yard, you can become as serene in the back yard as in his front yard. As to standard 2, the similarly situated property owners in the area some of which do have larger than allowed deck in their front yard appear, at least in our standpoint, to either be preceding the ordinance, or have not yet been caught. So the granting of, currently he has exceeded and the lawful nonconforming deck the ordinance dimensions and the granting of anything else in this situation, it wouldn’t help because anything that is bulk just exceeds the ordinance by that much even its a square foot. It’s a square feet larger than allowed. It would be a larger structure building on a larger structure. The third standard that the need for the variance is based physical characteristic of land. As the general conditions in the surrounding area in the zoning district. This is spelled out as not necessarily a problem as far as the lot is concerned the lot is not guiding this issue it’s the request of the applicant to use the front yard as it appears to be more serene. The need for the variance is not self-created. If you were to build it, it would be self- created. Doesn’t have to build as it has a deck in the front yard and can use that and continue to use it. There is not an issue of a standpoint as he has not built the current requested desk so there is no self-created hardship. There is no self-creation of a problem. It’s based on a personal desire and not a requirement of the lot itself. Mrs. Rise asked that Mr. Darbee’s motion be amended to indicate the need for the variance is self-created because he has the ability to build the deck and be compliant in another area of his property, so this request is self-created. The property will be able to be used with a deck and comply with zoning. Mr. Darbee accepted the amendment and moved that the variance be denied. Ms. Ulman seconded the motion. 3 Vote Dier - yes; Rise - yes; Darbee - yes; Ulman - yes; Dowd - Yes Motion carried. Variance denied. Z16-07 - 33 S. Tuscola - Liex property Mr. Darbee stated the appellants are requesting a variance from Section 122-423 of the zoning regulations prohibiting fences over four feet in height within 20 feet of the subject property’s Park Avenue front yard. If granted, a variance would authorize placement of a 6 foot fence along the property’s east lot line. Mr. Darbee asked if someone was available to present the request. Motion made by Bill The standard of strict compliance to the zoning regulations is unnecessarily burdensome. Because this property is situated where it is situated, i.e. next to a cemetery and in-between a heavily traveled road of M-15 and a lighter more local road or unused roadway of Park, it’s a unique situation for the particular premises and seems like the 20 foot set back and for the 4 foot fence going to a 6 foot fence, seems like at that particular regulation as if effects this property has no meaning. Seems like it’s burdening the property that the people are having and indicated they had vandalism trespassing and issues with discarding of trash of people roaming around seems as though this 4 foot barrier may help but a 6 foot barrier would certainly limit those driving by in vehicles from looking in and being able to see if there is any reason whether or not they will be able to travel on this property. It seems like a 6 foot fence would be a better barrier than a 4 foot fence on this property where it is located and how it is situated with the cemeteries. A variance if we were to grant it 10 feet back is no different than 20 feet back an it’s either a 6 foot fence or 4 foot fence would be assisting their property at the property line as opposed to 20 feet back. The 10 foot set back to me has no practical use whether the 20 feet back will allow those persons to run on the property between the fence and the roadway, which they are doing, so it will not improve the situation. #3 The need for variance from physical characteristics of the land are note to general conditions in the surrounding areas in the zoning district. We have again a unique situation with the land itself. As I am aware there are no other property within the city limits that comes close to this characteristics where it is surrounding by roadways and cemeteries. And the regulations as it effects this property seems to be an impediment for the ownership usage. The need for the variance is not self-created, it’s the property we are looking at. The property is such a unique parcel of land and situated with a cemetery and roadways and isolated and unlike any other property aware of in the city and as a result it’s self-created issue that by the regulation being imposed it’s a problem for the land. The property is a cause and unique and as a result of the foregoing move to grant the variance. Mrs. Rise stated she had concern with standard #4 and the wording of Mr. Darbee’s motion. Difficult the practical alternative, while not convenient, is an alternative and the one that 4 having a difficult time with. Even though it would push the 6 foot fence back there would be the litter issue that’s not necessarily the job of zoning to rectify. It’s a situation based on the property. To put the fence back at the 20 foot line would allow them to utilize the 6 foot fence and gain privacy. They would lose yard, but that’s to the point of strict compliance number 1 that it will put the property to use without the variance. They would use it even though it’s more expensive or less convenient, it’s still possible. In that respect it is considered a self-created problem. If a 4 foot fence goes up along the property line they will accomplish keeping people off, but you cannot guarantee that fact. It will be better keeping them off at the property line. People can throw stuff over, but you can also throw stuff over a 20 foot set back. The thought I got is with people coming along that roadway a 6 foot fence will detour them or won’t have the advantage of trying to detour them from going on to their property, a 4 foot fence you can still see if there is someone out there. A 6 foot fence is harder to look over. Normally you have neighbors and people observe thing going on and surrounding it. This is conducive to this area outside their property conducive to hang out there and do whatever. The location from that standpoint is what is causing the request. The other item I want to address is while we would consider it less convenient to take 20 feet of their property, I don’t believe that, that is less convenient I think that is less of a burden for them to give up 20 feet of their property and not have it to use with the rest as they see fit. I don’t think the standard of being determined the property can be put to the subject property to use with a variance even though it would be more expensive and less convenient. I don’t see how that applies here because if you take 20 feet away from a property it’s 20 feet they are not going to use because there is a fence obstructing their use and because of their location of the property and the uniqueness of it and the location being near the woods and near the cemetery that it is not self-created. Bill just to add a little bit to that and further, there would be no need for the variance if the property were not located where it is and how it is. If this were a through lot in the neighborhood with people around there would be no need for a 6 foot fence. In a sense the need for a variance is a direct result of the uniqueness of it and it’s how neighbors are configured in this case. It’s a general characteristic of the property that is causing the need for the variance. Seconded by Jan Rise. Motion carried. Case Z16-08 - 1400 N. Henry - Humane Society of Bay County - Request for Use Variance Mr. Darbee stated The Humane Society of Bay County (HSBC) is requesting a use variance that would, if granted, authorize the establishment of an animal shelter in the C-2-A General Business zoning district at 1400 N. Henry. He asked if someone was available to present the appellant’s request. Jeannie Wolicki-Nichols, President of the Humane Society of Bay County (HSBC), introduced herself as the appellant’s representative. Sandy Covaleski of Commercial Equities introduced herself as representing the subject property’s buyer/seller, or potential buyer. 5 Ms. Wolicki-Nichols stated a use variance would allow HSBC to provide a single location for operation of HSBC’s animal adoption and shelter programs. The building would also house all of HSBC’s office and program functions in a single location. Mr. Dier stated the appellants’ had three options for bringing their request to the ZBA: 1) requesting a use variance; 2) appealing staff’s determination regarding the establishment of animal shelters in the C-2-A zoning district; or 3) requesting an interpretation of C-2-A and Industrial zoning district regulations. Of those options, the need for a use variance is most difficult to prove because the first standard requires proof that the property subject to the request cannot be used for any uses permitted in the zoning district in which it is located. He stated the evidence presented does not relate to the property, but the appellant’s desire to use the property, not that it cannot be used for all other permitted purposes. An appellant’s request must meet all of the use variance standards which makes granting a use variance a difficult thing to do. He indicated he did not believe an animal shelter as described would be an unreasonable use, however under scrutiny of the standards, he believes the request fails to satisfy the first standard. He suggested the appellant could have chosen other options because a use variance is so difficult to obtain. He concluded by stating there may be an argument to be made that a shelter differs substantially from a kennel. Staff reiterated that subject property’s zoning designation can accommodate all HSBC office and program activities except its animal shelter program. He indicated “animal shelter” is not defined or otherwise regulated by the city’s zoning regulations and that kennels have been permitted only in the city’s industrial zoning districts for decades. He stated that animal shelters as we think of them today likely did not exist when the city first relegated kennels to industrial zoning districts and county’s operated animal shelters. The city’s zoning regulations have not changed as animal shelters changed over time. Staff reiterated the predicament presented by Mr. Dier’s comments regarding the first use variance standard, HSBC’s ability to use the property for purposes permitted by C-2-A zoning district use regulations, and HSBC’s basis for requesting a use variance. Ms. Wolicki-Nichols states that animal shelters were historically established outside of cities because animal shelters were established by government agencies to protect people from animals. She stated that society has changed and that many organizations are locating animal shelters in cities where they are closer to people and more easily accessible for adoption. She stated ordinances have not kept current with changes in society. She indicated HSBC wishes to establish a facility that differs from those with rows of cages filled with animals and offers a variety of programs and educational opportunities. She stated such a facility should not be located in an industrial zoning district, but an area such as Henry Street. Mr. Darbee stated he applauds HSBC’s mission and efforts, but that more must be done and it must be done appropriately. He indicated he has difficulty with the first legal impediment to granting a use variance - the standard that the property cannot be used for any other uses. He stated the appellant has described a great building that accommodate everything HSBC wants to do except its animal shelter. He indicated he the request does 6 not meet the second standard. He stated the ZBA is obligated to base its decisions on granting variances on standards established by the courts. He also indicated has difficulty viewing the appellant’s request in light of the impediment of the first standard that the property cannot be used for any permitted uses. Mr. Darbee offered the following motion to deny the variance based on the following findings: 1. Based upon discussion that we had and the statement made about the application in the issue of animal shelter. The first standard that we have to review is the property subject to the request cannot be used for any of the uses permitted in the zoning district for which it is located. I believe we determined that the property can be used for any number of uses and in fact could be used for the Human Society if the words ‘animal shelter’ are not going to be part of the use. Which means that other uses within that zoning district are able to be used in that building. 2. The need for the variance is due to the unique circumstances peculiar to the property and not due to general neighborhood conditions applicable to other properties in the same zoning district. The property is similar for use and can be used in the same manner as other properties in the area. The property has no unique circumstances such as odd shape or extreme narrowness. 3. The proposed used will not alter the essential character of the neighborhood. Generally that is probably the case if the animal shelter was not a use of the property of the applicant. The definition of animal shelter doesn’t mean 1 and it doesn’t mean 1,000 maybe something in between, we don’t know but, that could be an alteration because there are no other properties similar to animal shelters and pet stores in the neighborhood. 4. The problem and resulting need for a variance has not been self-created because the use they are asking for is for an animal shelter. The property is capable of being used for other uses without any issues. For those reasons I would say to deny the use request. Ms. Ulman seconded. Vote 5 yes; 0 no. Motion adopted. Variance denied. Z16-09 - 2632 Broadway - Bay Industrial Finishing Bay Industrial Finishing is requesting a use variance from zoning regulations precluding the expansion legal nonconforming uses that are not permitted in the zoning district in which such a use is located. The applicant’s use of the subject property is legally nonconforming because it is located in a C-2-A General Business zoning district. Motion Mr. Darbee moved that the variance be granted based on the following findings: 7  A. Property subject to the request cannot be used for any of the uses permitted in the zoning district in which it is located. The property is and has been used as a manufacturing facility and will be used as a manufacturing facility in the future. B. The need for the variance is due to the unique circumstances peculiar to the property and not due to general neighborhood conditions applicable to other properties in the same zoning district. The property is unique in that it is a manufacturing facility surrounded by residential. It is an island in itself and to take that ability to use that property and expand that property as it was just before he purchased it for tax abatement and used for a general facility for manufacturing purposes. It certainly is different than other areas surrounding it but within the confines of the larger area along Broadway, you find a lot of manufacturing and hard type industrial uses in that vicinity. The residential property in that area is an abnormality for the area itself. C. The proposed use will not alter the essential character of the neighborhood or area. It hasn’t from the time Horak or predecessor acquired the property and built the property, however, where it came into being up to and today it hasn’t affected the property generally under any circumstance. D. The problem, result and need for the variance has not been self-created it has not been since when the property was purchased it was industrial and can be used for that reason. It was changed out from underneath him by the planning commission and city fathers. By changing the zoning of the property but yet he continued to use it as a manufacturing facility aided by the city and tax abatement sometime after he purchased the property leading him to believe it was continued to be manufacturing and up to today continued to be under the assumption that it was manufacturing property and as a result his issue has not been self-created under any circumstances it was by others, and others being the municipality that changed the zoning so he could not use the property under certain circumstances. To not allow it would prevent a potential increase in economic development for the area and yet the size of the expansion is something less than 5%. Of the property that is under roof at this time and yet the truck pays are the real critical use for the area and the homes are something less than 5% of what is under roof at this point. The expansion of the nonconforming use is minimal at best. The issue is that it has been used for many years as industrial and it is certainly not going to be changed into a different use if he were to close down and go elsewhere as can be seen by other properties in the area that have done that very thing and now many of them are not even occupied. That leads me to believe the use variance be granted. Jan Rise concurred with Mr. Darbee’s findings and seconded his motion. Vote 5 yes; 0 no. Motion approved - variance granted as requested. 5. Other Business None. 8 Prepared by Scott McKillop, Staff Liaison, Planning, Zoning & Grant Administration Department 9