Zoning Board of Appeals

ZONING BOARD OF APPEALS Regular Meeting Minutes June 12, 2018 City Commission Chambers - City Hall Introduction & Roll Call Chairman W. Darbee called the meeting to order at 7:00 p.m. Members present: William Darbee, Jan Rise, Lonnie Dowd and Chris Greenleaf. Alternate Member Absent: Alternate member Charles Congdon Others: Scott McKillop, City of Bay City Liaison, Debbie Kiesel, Community Development Director, Terry Moultane, AICP, Planning/Zoning Department Manager & Acting City Attorney Richard C. Sheppard, Smith & Booker, P.C. Approval of Minutes Motion by Mr. Dowd, seconded by Mrs. Rise, to approve the minutes of the March 13th, 2018 Zoning Board of Appeals ZBA meeting with one correction (first page, first sentence of first paragraph following items numbered 1 and 2). Motion carried Motion made Mr. Greenleaf, seconded by Mrs. Rise to approve the April 10. 2018 meeting minutes. Motion carried. Public Comment Not Related to Public Hearings None. New Business – Public Hearings Mr. Darbee asked if there were any objections to considering Case Z 18-06 as the first item of new business. There were no objections. Case No. Z 18-06 - 718 Stanton - Rosendo Flores Rosendo Flores is requesting a non-use variance from the zoning regulation requiring a minimum distance of 25 feet between any portion of a home and a rear lot line. Mr. Flores wishes to build an attached garage extending from the rear wall of his home to a point two feet from his property’s rear lot line. Vehicles would enter the garage via overhead doors along its north facing (side) elevation. 1 Dorothy Flores was present speaking for Mr. Flores requesting permission to build a garage at 718 Stanton. The garage would serve several purposes as vehicles have been broken into and vandalized. As they are seniors they would feel this would be a good thing as they would not have to worry at night for something to happen to their vehicles. They feel the building would also beautify the neighborhood. B. Darbee questioned the length of the garage between the home and rear lot line. He inquired as to whether there were standard sizes for residential garages. L. Dowd stated a standard garage is 24 by 24 feet. S. McKillop stated the house is 26 feet wide, is setback 7 feet from the property’s south lot line and 17 feet its north lot line. Mr. Darbee, Mrs. Rise and Mr. Greenleaf questioned the need to extend a garage to within two feet of the rear lot line. Mr. Flores & ZBA members discussed reorienting the garage such that it would provide a greater setback from the property’s rear lot line, and placing its overhead doors along its east facing (rear elevation) to provide easier access to the garage from the alley abutting the property’s rear lot line. It was noted it would be impossible to build a garage between the Flores’s home and front or side lot lines. It was noted that the existing shed in the property’s rear yard would be demolished to accommodate construction of the new garage. ZBA members concluded only option available will be to erect the attached garage in the rear yard. Widening the garage could extend closer to the south or north line. The doors will be located on the north side of the garage along the alley as there is access from the alley and front. There is already an accessary building on the property and plans are to remove it. S. McKillop stated from the standpoint of property, the property is limited in size and there are few buildings along the street extending to the rear lot line. There is no place else on the property to build an attached garage. Mr. Dowd stated there is adequate room to orient an attached garage such that access is via the alley behind the home. Mr. Darbee asked if there were additional questions or comments. There were none. He then asked if anyone in audience cared to address the ZBA on the matter. Nobody attending the meeting addressed the ZBA. Mr. Darbee made the following findings: The 25 foot rear lot line setback regulation does unreasonably prevent construction of an attached garage, whether it be one, two or three. It just cannot be done with the size of the garage and the size of the lot. The regulation does impair the ability to have a garage on the premises. Granting the variance would have the effect of unjustly waiving a regulation that applies equally to all residentially zoned properties in the city. This is not the case in that other properties in the city do have garages; they do have them in some cases large garages of various sizes. The regulation affects the property, however the city has lots of varying width. This property, the location of its home and the setback regulations prohibit him from having a garage. Would a lesser variance in this case a double or triple garage having its entry off of the alley with a 90 degree entry would allow him to have a two or three car garage? Yes, reorienting the garage allows construction of the garage as warranted by the zoning regulations. A lesser variance would allow him to have the same building oriented differently. 2 The size and orientation of a garage is dictated by the size of the property which was established decades ago when the neighborhood was originally platted. A garage cannot be constructed in the front or side yards. Motion by Mr. Darbee Mr. Darbee then moved that the ZBA grant a lesser variance than originally requested allowing the construction of the appellant’s detached garage extending 26 from the rear wall of the appellant’s home with entry doors oriented toward alley abutting the property’s rear lot line. The garage will otherwise comply with side lot line setback requirements. Mr. Greenleaf seconded. Vote Mr. Darbee - yes; Mr. Dowd - yes; Mr. Greenleaf - yes; Mrs. Rise - yes Majority adopted by majority roll call vote. Case No. Z 18-05 - Bay City Housing Commission Appeal of Planning Commission Denial of Application for Special Use SU 18-2. The Bay City Housing Commission is appealing the Bay City Planning Commission's March 21, 2018 decision denying the Housing Commission's application for a special use permit and site plan approval for a 56 unit affordable housing development at 501 Columbus and 111 N. Madison. Mr. Darbee stated it is his understanding that the ZBA will consider the record of the Planning Commission’s decision on the Housing Commission’s special use application, though will not be hearing additional testimony or public comment. Acting City Attorney Sheppard stated that the city’s zoning regulations and Michigan Zoning Enabling Act (MZEA) contain no criteria or guidelines for appeals to ZBAs of Planning Commission decision on requests for special uses. He recommends, therefore, that the ZBA consider the appeal as appeals of Zoning Board of Appeals decisions are made to the Circuit Court as specified by the Michigan Zoning Enabling Act. The ZBA and Planning Commission are both public bodies having discretional decision making authority. Mr. Sheppard stated the ZBA is a public body subject to the Open Meetings Act it is his recommendation that the ZBA hear public comment rather than not do so in the event the ZBA’s decision in the matter is appealed by an aggrieved party (planning commission or housing commission) to the Circuit Court and the Court remands the matter to the ZBA to do so. He concluded by stating the ZBA would be better served by hearing public comment rather than not doing so. Mr. Darbee stated that any public comment at this evening’s meeting could contain additional facts that may not have been originally presented to the Planning Commission. Mr. Sheppard stated the ZBA’s decision should be predicated on the Planning Commission’s record, however if there is a fact that was not considered by the Planning Commission, the ZBA has the right to send the matter back to the Planning Commission as the Court would send an appeal of a ZBA decision back to the ZBA. Mr. Sheppard concluded by stating the ZBA may proceed without hearing further comment on the matter, if the decision on the appeal comes before the Court, the Court would likely refer it back to the ZBA with a request that the Planning Commission minutes be transcribed verbatim. 3 Mr. Darbee stated that if an appeal of a ZBA’s decision comes before the Court, the Court determines whether there was sufficient evidence in the record supporting the Planning Commission and ZBA decisions. If the ZBA is analogous to the Court, the ZBA reviews the Planning Commission’s record and makes a decision rather than the Court doing so, and the ZBA’s decision may differ from the one that prompted the appeal. Mr. Sheppard stated it will be impossible to determine what was said at the March 21st Planning Commission without having a transcript. If the ZBA hears public comment and if there are facts in addition to those presented to the Planning Commission, the ZBA has the right to deny the appeal, grant the appeal, grant the appeal with conditions, or send the case back to the Planning Commission for further consideration. Mr. Darbee stated the Circuit Court reviews only the record when hearing appeals of ZBA decisions. Mr. Sheppard stated the Court looks at the ZBA’s record of proceedings and decision to assure it complies with laws of the state, is based on proper procedure, is supported by competent, material and substantial evidence on the record and represents a reasonable exercise of discretion granted by law, in this case, to the Planning Commission, and, in that case if the appeal; goes to Circuit Court. Mr. Sheppard reiterated his recommendation that the ZBA receive public comment. Mr. Darbee stated his thought that the Court would remand any additional facts resulting from public comment at this evening’s meeting to the original decision making body, that body being the Planning Commission’s. Mr. Sheppard stated the Judge would likely remand the case back to the ZBA with instructions that the ZBA remand the matter back to the Planning Commission. Mr. Darbee stated his preference that the Planning Commission’s record stand on its own without additional testimony and asked ZBA members to state their preference as to the matter. Mr. Dowd, Mr. Greenleaf and Mrs. Rise stated their preference that the Housing Commission’s appeal proceed without additional public comment. Mr. Darbee asked if staff had received any comments or correspondence regarding the appeal other than Mr. Sheppard’s correspondence of June 5th, 2018. Staff indicated no comments or additional correspondence had been received other than that from the appellants and Mr. Sheppard. Mr. Darbee asked whether the city would be presenting an argument on behalf of the planning commission. Mr. Sheppard indicated there would be none. He then instructed the ZBA to begin its consideration of Planning Commission member Milster’s motion denying the special use pointing out that the Commission has discretion in its application of the zoning regulations’ special use approval standards as the ZBA has with its decision making standards. Mr. Darbee stated it is his understanding that the city’s zoning regulations allow the housing project multiple-family residential developments as a viable project in the O-1 Office zoning district. Mr. Sheppard stated the use is allowed in the zoning district as a special use. Mr. Darbee then asked whether the standards include one stating, “I don’t like this here.” Mr. Sheppard referred to the second special use approval standard (Section 122-357(b)) is that the Planning Commission needs to decide whether the use is compatible with surrounding uses and consistent with surrounding uses within the zoning district, then spoke to the balance of the standards as well. He reiterated the motion to deny cited Section 122-357(b) as the standard upon which denial was based. Mr. Darbee then stated that the motion provided no factual basis for Mr. Milster’s finding. Mr. Sheppard then read from the motion verbatim referring ZBA members to it by stating, “I do not think this project impairs the public health, safety or welfare. I don’t think there is any evidence that says that those things are impaired. However, I would 4 move to deny it because it is not appropriate for its proposed location and it’s not compatible with the character of the surrounding land uses and by that in particular I would say that the reason why it’s not appropriate is that Columbus business corridor has been targeted for reinvestment under our City plan and that it should remain a business corridor and should not become an area of high-density housing whether or not it’s low income or otherwise and that character of it is commercial and I think that it should remain commercial. It’s one and two story businesses as opposed to three to four story businesses and I don’t believe it’s appropriate for that location and compatible with the character with the surrounding land uses. That’s that reason.” He mentioned that the motion went on to say that the city should not redo its housing ordinance. Mrs. Rise stated that the motion also refers to the “housing study” (Report on Housing and Neighborhoods City of Bay City, Michigan, prepared by czb for Carlisle/Wortman Associates, Inc. Commissioned by the Bay City Housing Commission and completed in 2016) and that we, the Planning Commission, should not approve projects that are inconsistent with the city’s master plan and housing study despite the fact that the housing study is not part of the zoning regulations. She stated such a reference suggests a personal bias about the housing study and low income housing and that the maker of the motion did not base it on the special use approval standards. Mr. Sheppard confirmed that the first reason stating the basis for denial is listed in the zoning regulations. The zoning regulations do not include the aforementioned czb study as a special use approval standard. Mr. Greenleaf asked whether the ZBA should have a transcript of the Planning Commission meeting. Staff indicated that staff had determined that the Planning Commission’s record of proceedings was sufficient for the ZBA proceeding and that a transcript would be premature. Mrs. Rise asked whether the standards listed at Section 122-357(a-n) govern approvals of special uses, or whether the master plan and housing study apply. Staff confirmed the standards listed at Section 122-157(a-n) govern special uses. Mr. Darbee asked if there were additional questions or comments. There were none. Motion by Mr. Darbee “The planning commission reviewed all of the special use approval standards in Section 122-357 of the zoning districts with subsections a - n. and based upon the record they found no issues with sections c - g, excuse me, c - n. By that statement I must take note that Mr. . . . (Milster, the maker of the motion stated), “. . . as far as items c - n I don’t believe they’re applicable and I’m not worried at all about the c - n of the staff report because I don’t believe the proposal causes any problems with those sections.” What he (the maker of the motion) goes back to there is the statement that is confounding to me in some respects . . . is, “I do not feel the project is compatible with the business corridor for the Columbus Avenue,” and then he goes on in the motion and says, “it is not appropriate for the proposed location it’s not compatible with the character of surrounding land uses,” and that it’s a statement - I understand it’s just a statement, it’s just, “I do not think.” To me, it’s a special use permit, they’re looking at something that is a . . a . . . he’s (the maker of the motion) looking at it as more of a simplified business/commercial and it doesn’t reflect the fact that housing is a proper use for the area and he excludes any because its housing, it’s not applicable for the area and yet housing is surrounding a lot of the area and that is going to be used; the business portion of it is going to be located along the main roadway, the housing away from the main roadway on secondary streets along with other single family housing. In this case, multiple family, which is a proper use under the zoning ordinance, 5 In this instance I think that the determination of being appropriate is an opinion without basis of fact and a disregard of the housing report whether or not that should have been considered at all. So if they consider the housing states multiple housing is a good thing. If they don’t consider it then the zoning ordinance says housing is appropriate for the area and it’s under the auspices of the zoning ordinance that the housing is being suggested for that area. As a result I think that the Planning Commission ruling of a denial of the special use permit should be overturned and the special use permit allowed.” Mrs. Rise supported the motion. Discussion Preceding Vote Mrs. Rise then asked staff to clarify the effect of a yes or no vote on Mr. Darbee’s motion. Staff indicated a majority yes vote would overturn the planning commission’s decision. Staff reiterated the recommendations regarding the ZBA’s action on the Housing Commission’s appeal provided by acting city attorney Richard Sheppard’s correspondence to the ZBA dated June 5th, 2018. Staff reiterated Mr. Sheppard’s recommendation as to the ZBA’s consideration of the planning commission’s record of proceedings and the ZBA’s action on the appeal in the manner of an appeal to the Circuit Court. Mrs. Rise then asked whether all of the special use standards must be met in in order for a special use to be approved by the planning commission. Staff indicated all of the special use do not need to be satisfied in order for a special use to be approved as some of the standards may not apply to certain uses. Staff reiterated that the zoning ordinance’s special use standards were listed in staff’s report to the planning commission and the Planning Commission’s discussion of the standards is reflected in the minutes of their meeting which served as the basis for Mr. Darbee’s motion. Vote Mr. Darbee - yes; Mr. Dowd - yes; Mr. Greenleaf - Yes; Mrs. Rise - yes Motion approved by majority roll call vote. Other Business Mr. Darbee asked that the two actions taken by the ZBA at this evenings meeting be given immediate effect. Mrs. Rise Seconded. Motion adopted by a 4/0 voice vote. Both of the evening’s actions are given immediate effect. Adjourn Meeting adjourned at 8:20 p.m. Prepared by: Scott McKillop, Community Development Planner/Historic Preservation Officer William H. Darbee, Chair: Date: July 6th, 2018 6