Board of Zoning Appeals Regular Meeting

Development Center Board of Zoning Appeals 1120 Monroe Ave NW Meeting Full Grand Rapids, MI 49503 March 17, 2022 Public Hearing Room, 2nd Floor I. 12:00 - 12:30 p.m. Commissioner's lunch - Room 303 II. 12:30 p.m. Roll Call Present: Lynn Rabaut, Fred Stella, Ryan Kilpatrick, Traci Montgomery, Mary Swanson, and Cortney Schaffer Absent: Jamon Alexander, Alecia Lewis, and Rafael Castanon Staff Present: Planning Director Kristin Turkelson, Assistant Planning Director Tyler Kent, Dale Fitz, Assistant City Attorney Amber Beebe, and recording secretary Carol Gornowich Ms. Rabaut provided a brief outline of the hearing process and asked that those providing public comment limit comments to 3 minutes. She acknowledged receipt of a number of letters as well as related information. She clarified that the Board is dealing with a retaining wall issue and disturbance of steep slopes of 20% or greater. The Board is not dealing with lot line issues, which is a civil matter between property owners. III. Approval of Minutes 1. Approval of Minutes from November 18, 2021 RESULT: ACCEPTED [UNANIMOUS] MOVER: Mary Swanson SECONDER: Traci Montgomery YEAS: Rabaut, Swanson, Schaffer, Kilpatrick, Montgomery, Stella ABSENT: Zeiser, Castanon, McCoy, Lewis, Alexander IV. Public Hearings beginning 1:00 p.m. or soon thereafter in the Public Hearing Room, 2nd Floor A. 1:00 PM - P-BZA-2021-0022 - Dimensional Variance - Postponed from 11/18/2021 Address: 1422 Walker Ave NW Case Number: P-BZA-2021-0022 Applicant/Owner: William & Lindsey Amey Trust (William Amey) Variance Type: Dimensional Requesting: To construct multiple wooden retaining walls on steep slopes of 20% or greater. In the Zoning Ordinance grading or removal of vegetative cover is not permitted on land with existing steep slopes, and wood is not a permitted material for retaining walls. In addition to the original request above, the applicant is also requesting to construct a ~75 ft. long steel sheet pile retaining wall 25 to 30 ft. south of the detached garage on steep slopes Generated 3/21/2022 8:03 PM Board of Zoning Appeals Meeting Full Page 2 March 17, 2022 of 20% or greater. (Note: The applicant is no longer requesting the proposed sheet pile retaining wall, and it has been removed from the plans.) Permitted: Grade & removal of vegetative cover for building sites on slopes < 20% Wall Material – Decorative Block, Poured Concrete, Brick or Stone Requesting: Grade & removal of vegetative cover for building sites on slopes ≥ 20% Wall Material - Wood Variance Needed For: Grade & removal of vegetative cover for building sites on slopes ≥ 20% Wood Retaining Wall Lot Size: Frontage: 100 ft. Depth: irr.424 ft. Area: 1.02 acres Zoning: TN-LDR Inspection: Kilpatrick Ordinance Sec. 5.2.11.B.b. Sec. 5.11.05C.2. Previous Appeals and N/A Disposition: Mr. Fitz recalled that this matter was postponed from the November 18, 2021 meeting. Staff was asked for additional information and different staff members will provide the related reports. Storm water engineer, Dan Tabor, will address the Board’s question regarding whether the slope could be restored. Assistant Planning Director, Tyler Kent, related that shortly after the November 2021 meeting, staff met the applicant on site and walked the property. In addition to Mr. Kent, staff members that were included in that meeting were Michael Brown, Plan Examiner, Dan Tabor, Project Engineer, and Scott Baker, Code Compliance Supervisor. They walked the property and assessed the work that was done on site including the retaining walls and the playing field area at the back of the property. They discussed the improvements that were done prior to the work that was completed, and what was found on the site in terms of infill that the applicant spoke to as being debris. Mr. Kent indicated that there was snow cover on the ground at the time. They also took photos. Staff asked the applicant to work with an engineer to provide pre- and post-elevations of Board of Zoning Appeals Meeting Full Page 3 March 17, 2022 the site showing the conditions prior to the work, as well as after. The applicant has provided that information, which is included in the Board packet. Stormwater Engineer, Dan Tabor, explained that he was asked to review the site with the various staff members. During the site visit they reviewed the retaining walls and some of the site grading. He observed that the main area of grading was for the creation of the pathway to get from the front of the house to the rear of the property. That is where grading and excavation occurred. The area was found to be relatively stable in terms of site conditions. Mr. Tabor clarified for Ms. Rabaut that actually the entire site was found to be relatively stable. He related that they started enforcement files on the property on May 28, 2020. Every month an inspector went out to review general conditions of the site. Following the May 28, 2020 inspection, verbal orders were given to Mr. Amey to stabilize and control what was being constructed. Upon a subsequent inspection on June 29, 2020, the inspector found the site to be in compliance with soil erosion control measures. A monthly site inspection continued from June of 2020 through September of 2021 to make sure the site remained in compliance with soil erosion measures, which is what the inspector found. Mr. Tabor clarified that they found that the soil was staying on Mr. Amey’s property during that time. During the site visit in November 2021they didn’t observe any erosion or material going to adjacent properties. Mr. Tabor related that he and other staff members have been working with Mr. Amey and their engineers to formulate a plan to permanently and further stabilize the site and achieve full code compliance. Mr. Kilpatrick asked how the grading has impacted stormwater either on the property itself or stormwater that might be leaving the property in a way that it was or was not leaving the property prior to grading. Mr. Tabor explained that fundamentally the area is a big hill with drainage going toward the north and east, which is how the drainage has always been. With regard to potential effects, by removing vegetation for the pathway construction, there is likely to be more water that heads down the hill toward Walker/the front of the property. Suggestions were given to Mr. Amey to add a curb of fill material on the pathway to make sure the water travels down the hill and not to adjacent properties. As stated, it is a big hill and there has always been ground water or run off coming from the hill and going to adjacent properties. In terms of the rear yard of the property and construction of the soccer field, the soccer field is a large buffer. It is a wide soccer field where the run off from the hill dissipates on the field. Mr. Tabor related that he didn’t observe any adverse effects or have any opinions on that area. From his perspective, the challenges relate more to ensuring that the pathway and any runoff from the pathway is appropriately contained and managed. In terms of slope stability, the grading near the soccer field on the southern portion of the lot was less of a cut; approximately 2-3’ with a timber wall retaining that. From the top of the hill, where the pathway was created, is where a more significant cut of 4-5’ occurred. Mr. Kilpatrick asked if it was fair to say, in looking at the topography prior to the grading and the topography now, that there shouldn’t have been negative impacts on adjacent property from stormwater runoff that wasn’t already occurring prior to the grading. Mr. Tabor explained that anytime you change grading or remove vegetation there is going to be changes to the runoff pattern. There was a significant amount of water going to adjacent sites prior to Mr. Amey’s work. That is where they want to make sure that that stormwater is Board of Zoning Appeals Meeting Full Page 4 March 17, 2022 managed where the grading and removal of vegetation occurred for the pathway. Through conversations with Mr. Amey and his engineer, adding the curbing/berming will ensure that water flows into his yard and no additional water is sent to adjacent properties that wasn’t already occurring. Mr. Tabor clarified the term curbing. It isn’t concrete; it is grading the earthwork to make sure the water remains in the pathway area and on his property. Ms. Swanson expressed her understanding of Mr. Tabor’s testimony; that the condition is not substantially worse because of the grading. Mr. Tabor stated that based on what he witnessed, no. He is aware of various photos that were submitted of some erosion, mainly on Walker. He clarified that Walker Ave. was under construction during 2020 and there were two significant rain events. One was on May 28 and the other was July 19. Each of those rain events were over 4 inches, which corresponds to over a 100-year design event. Regular city streets are designed for a 10-year event. The two rain events could have potentially exacerbated some issues and challenges during construction. There were major pavement washouts and very destructive forces. The May 28, 2020 storm led to the formal enforcement case beginning and the monthly inspections to ensure that what was occurring on Mr. Amey’s property was in compliance with the soil erosion regulations; meaning that any disturbed soils remain on his site and not enter other properties or the right-of-way or cause damage. Ms. Rabaut asked if Mr. Tabor’s office checks for permits when they receive a complaint. Her understanding is that there were no permits pulled. She asked if they typically require permitting for soil erosion. Mr. Tabor explained that for single-family residential a permit is required if it is within 500’ of a lake or stream or it disturbs over an acre, neither of which are the case. Therefore, it did not meet the threshold for a soil erosion permit. When the formal enforcement began with his department is when the coordination further escalated with Code Compliance and the Building Dept. to make sure building permits were being obtained and Code Compliance factors such as setbacks and steep slopes were addressed. Ms. Rabaut clarified that when his office responded to the initial complaint in May there was no reason to require a permit. Mr. Tabor agreed, from a soil erosion perspective. In his review, permitting, and violation authority verbal orders were given in May to address the issues, which is standard procedure especially for homeowners. The inspector returned in June and found that the soil erosion measures were addressed. Subsequent inspections continued through September 2021 and the reason they were discontinued at that point is they had seen significant periods of no changes and they were further along in the process between Code Compliance and court dates, etc. Ms. Turkelson clarified that even though soil erosion permits were not required, based on the code that Mr. Tabor enforces, Planning would have reviewed the permit because a building permit was required. There were alternate reviews that should have taken place that would have allowed staff the opportunity to review and also prevent the encroachment into the steep slopes because they would have denied the permit. Board of Zoning Appeals Meeting Full Page 5 March 17, 2022 Ms. Rabaut asked if Mr. Amey was notified that he needed building permits before May of 2020. Ms. Turkelson asked that either Mr. Baker or Mr. Brown speak to the enforcement process. Code Compliance Supervisor, Scott Baker, related that they received a complaint in April of 2019 and they’ve been actively working an enforcement case that began with a Notice of Complaint letting them know of an issue. There were conversations with the property owner at the counter as they moved on through further enforcement actions; Notice of Violations, Warning Letters, three Civil Infractions, and at this time the office has filed a criminal misdemeanor against Mr. Amey for failure to get permits and for encroaching into the steep slope. Ms. Rabaut expressed her understanding that the enforcement process takes a long time and that there has to be a certain number of notices before getting to the point of court. Mr. Baker agreed. They are required to give due process. The Notice of Complaint is 21 days and a Notice of Violation is typically 60-90 days. A Warning Letter offers an opportunity for an extension inviting an owner to discuss the situation and request the time needed. Staff generally agrees to an extension to provide every opportunity to comply. Following that they would write a Civil Infraction ticket and they can issue the next Civil Infraction ticket no less than 60 days after the first. The misdemeanor was filed last fall. The owner has been in multiple times talking to staff and they’ve tried to work through things. There have been some informal extensions as well. Ms. Rabaut clarified that no permits have been pulled. Mr. Baker agreed. Michael Brown, Plans Examiner for single-family homes in Grand Rapids, related that they made a site visit as a group. The work that Mr. Amey has done on the retaining walls appeared to be adequate. Mr. Brown had the property owner confirm with an engineer that what he had done was in fact good. Per the stamped sealed drawings he submitted, it appears as though things were built the way they should be. With respect to the retaining walls around the garage area, his opinion is that they are essential. The retaining wall at the back doesn’t have a building or steep slope on it and there is nothing for it to hold back other than the dirt that is there where they leveled it out. There is an area around the back of the garage that may or may not be a problem in the future. They reviewed that a bit and it will be addressed. He doesn’t know if it will require a retaining wall or something similar. Mr. Brown explained that on the building side of things he gets involved with the actual construction of the wall or a building. He is aware of many things because of the nature of his job. On the building side of things, the walls appear to be sufficient for what is required. Mr. Kilpatrick asked that Mr. Brown explain further why he feels the retaining walls around the garage are essential. Board of Zoning Appeals Meeting Full Page 6 March 17, 2022 Mr. Brown clarified that he is not a soils engineer but, based on the photos he saw before he did the work and after he did the work, some of the areas seem very similar to what is there in that they were retained. He doesn’t have any knowledge of the makeup of the wall or rubbish that was there previously but it looks to be the same contour of what was there before. Mr. Brown believes that if the walls weren’t there there would likely be some slope failure in the area of the lower walls on the west side of the garage. On the east side of the garage, that backs up to the cut/path, if he were building it he would certainly try to stabilize that area just to prevent anything from washing away. Mr. Kilpatrick asked if it would be accurate to say that the contours of the land behind and around the garage likely weren’t dramatically changed when those walls were installed and that it was just for reinforcement of generally the topography that was already there. Mr. Brown stated, based on what he remembers, the walls to the east and the west do not appear to have changed significantly. He never saw anything in the back previously so he can’t speak to that. Ms. Montgomery clarified that those are the walls immediately adjacent to the garage. Mr. Brown agreed. Ms. Rabaut expressed her understanding that the materials that were used are not approved per code. Mr. Brown replied that on the building side of things there isn’t an issue if Planning approves it. Mr. Fitz explained that the wood doesn’t meet the Zoning Ordinance requirements and the steep slopes in that area were disturbed, which is also a violation of the Zoning Ordinance. Mr. Tabor referred to sheet C2 and explained that the area Mr. Brown was referencing was directly south of the garage. Where the retaining walls were constructed the previous load of the hill was going onto the structure of the garage. With the construction of the retaining walls, it alleviates the load on the garage and disperses it to the retaining walls rather than the actual built structure. The area to the rear likely would have been disturbed previously with the construction of the garage, prior to Mr. Amey’s ownership of the property. Ms. Rabaut referred to packet page 95, a photo of the garage labeled 4.A.t. Mr. Fitz explained that it is a photo prior to the retaining walls being constructed but some work had begun. Ms. Rabaut asked if the topography around the garage has changed. Mr. Tabor explained that with no walls there the load was basically on the garage. The construction of the walls stabilized the area and kept the load off the garage. Board of Zoning Appeals Meeting Full Page 7 March 17, 2022 Ms. Swanson asked, as a homeowner who has concerns about the load being on the garage, if they would still need to request a permit to do the retaining walls. Mr. Tabor agreed. Building code requires that any wall greater than 48 inches in height have a building permit. Once the building permit process begins it is reviewed by Stormwater and Planning staff. Ms. Montgomery also referred to the photo on packet page 95 and asked if that was the condition before any work had taken place or as grading was beginning. Mr. Tabor didn’t know. William Amey, property owner, addressed the Board. He acknowledged that they’ve spent a great deal of time discussing how wrong he was and he agrees. There is no debate as to whether or not he should have done any of this work prior to coming to the City to ask. He explained that when he did come in, prior to this project, he was asking very specific questions as to whether he could drop trees on his property and if he needed anything specific for what he was intending to do out back. He really had no plans for the retaining walls or any intention to create something that was illegal or in any way non-compliant with code. He was not aware of the slopes over 20% requirements. He acknowledged again that he was wrong and in no way is he trying to defend any of those actions as reasonable. They have also spent a lot of time discussing the aftermath of the mistakes. As he was doing the construction, and was then made aware that it was inappropriate, he came to the City and was told he needed a plan in order to fix it and in the meantime, stop the erosion. Again, not knowing what he was doing he began to construct the retaining walls; to stabilize that area until he could get the plans approved. His understanding was that getting the plans approved was going to take months and months and he couldn’t leave the disturbed soils for that length of time. That was in no way condoned or suggested by anyone; it was his understanding of what the right next step would be. Mr. Amey answered Ms. Montgomery’s question related to the photo on packet page 95. The dirt that is seen is when he was driving up that side of the garage with his machine to get to the top. He originally didn’t want to disturb the other side and wanted to have a trail that went around the back. Upon notice from the City, he had to stop doing work in that area and went up and down on the other side moving dirt around. With respect to whether building permits have been applied for or issued, Mr. Amey explained that from that date in 2019 he has not been eligible for building permits until this meeting happened. He couldn’t apply for a permit for anything in the area of a 20% steep slope. He was very reluctant to appeal to the Board because the way it was explained to him was that he could apply but would likely get denied because it was a steep slope area. He asked what he should do then and was told to submit a plan. He went to an engineer and was asked what the City was asking him to do and his reply was that they didn’t know or didn’t have any input as to what he should do. The engineer would draw out an idea and it would be in direct conflict with the Ordinance. There were many iterations of just talking where Mr. Amey didn’t feel he was getting anywhere, along with the fact that he didn’t know what he was doing. He admitted that he wasn’t motivated and didn’t take it seriously. There are over 30 formal complaints from one individual dating all the way back to 2013. Mr. Amey stated that he has been dismissive of them because, as frustrating as they are, he has had a hard time rationalizing racially motivated complaints that range from having his trash can out too Board of Zoning Appeals Meeting Full Page 8 March 17, 2022 long to not shoveling a half inch off the sidewalk. There were multiple things he didn’t take seriously because of his own pride and frustration with the relationship with the neighbor. Mr. Amey stated again that he is not suggesting he is justified because of his own errors. Mr. Amey stated that the ambition he has for this meeting is to find a solution. He has spent nearly $29,000 on engineering and other professionally related services for finding a solution to this issue. There have been three different engineering firms involved in this project and many hours of the City’s help and many thousands of dollars paid in fines and fees associated with this project. His ambition is to resolve this issue in any way he possible can and address some of the things that have been biased or misconstrued. Mr. Amey appreciates the explanation of the rain photos and that there was no run off onto other properties at that time, as was shown in the inspection report. The subject property sustained those rain events without major erosion issues. He is willing to do even more than what has been done but what has been done has been stable over time and through many inspections. Mr. Amey recalled that one of the photos offered by a neighbor in the last meeting was during the May rain storm. Mr. Amey’s entire basement flooded during that event and had to be restored. The asphalt was torn up in the street. He agreed there was construction happening but it wasn’t in the street. The water coming down the street was 6-8” deep and during that storm is when the photo of muddy water was taken. The entire street was muddy water. That didn’t come from his property because there was no damage during those storm events. Mr. Kilpatrick asked the purpose of moving dirt before he was aware of the 20% slope rule. Mr. Amey explained that there was a whole piece of his property he couldn’t use because of the rubbish that was there. It included broken stone, rebar, yard waste and debris such as old trees. His goal was to get rid of that. He’d had that piece of equipment on his property a number of times before that to remove trees and things up and over the hill but the hill itself wasn’t walkable. He could drive a machine up it but it wasn’t walkable at that time. He hadn’t removed any sediment other than to make the path so that they could access the back of the property on foot. Mr. Kilpatrick asked if it wasn’t walkable because it was too steep or because it was too encumbered by vegetation. Mr. Amey replied that it was too steep to walk up. Even when City staff was at the property inspecting it someone fell just walking down it. It is still very steep. In all honesty, his intention was to go much lower with the grade before he was stopped. Mr. Kilpatrick asked, other than the back portion of the property, if the remainder of the site has been usable as long as he has owned it. Mr. Amey replied that everything forward of the barn has been usable. Mr. Kilpatrick asked Mr. Amey if he had any concerns about the load of the soil behind the barn impacting the structural integrity of the barn. Board of Zoning Appeals Meeting Full Page 9 March 17, 2022 Mr. Amey replied that he did not. It was filled with rubbish from construction and what had been dumped back there in the past. He has four daughters and they run back there with friends. There has been more than one occasion that someone had fallen on something. Mr. Amey clarified that he isn’t suggesting that justifies what he did but that was what he was thinking when he thought about cleaning it up. Mr. Kilpatrick expressed his understanding that there was a lot of trash and rubbish behind the barn and he made an effort to clean that up as well as thin out the trees and vegetation behind the barn. Mr. Amey clarified that he didn’t do much in terms of cleaning vegetation out behind the barn. The rubbish was underneath a lot of the vegetation but there weren’t any real trees behind the barn. He did disturb all of that area and in the construction of the walls the intention was to put it back because he thought that was what was appropriate to rectify the problem. Mr. Kilpatrick asked if disturbance of the soil was a result of removing rubbish. Mr. Amey agreed. He stated that he didn’t create any more space between the barn and what was there and what he removed. He removed rubbish but left all the dirt. There was no dirt hauled onto or off of the property at any time aside from the gravel that stabilized the surface of the path coming down. Mr. Kilpatrick asked if the contour of the slope behind the barn has changed significantly as a result of the retaining walls or is it generally the same with the retaining walls in place to stabilize the soil. Mr. Amey replied that that is accurate. If he were to remove all of the retaining walls and slope the grade to match what was there before he wouldn’t need to add or remove any dirt. The walls are terraced so that he could install plantings. If the walls were removed, the dirt would be spread at an angle and replanted to stabilize the soil that is there. Mr. Kilpatrick asked if there is also a retaining wall next to the soccer field. Mr. Amey replied that there is. The soccer field had a gradual slope across. He clarified that that area is not within the 20% slope. The goal was to have a flat area to enjoy in that area. Mr. Kilpatrick asked what was done with the dirt that was graded; was it compacted or moved to another portion of the site? Mr. Amey stated that the dirt moving that occurred on site came from the highest point of the topography. As he lowered the top of the hill the dirt got pushed into the soccer field area to level it. No dirt was moved from near the barn or at the front, it was all for the sake of lowering the steepness of the hill for foot traffic access to the back. Mr. Kilpatrick asked if there is similar topography behind several parcels in the neighborhood or is this the only property. Board of Zoning Appeals Meeting Full Page 10 March 17, 2022 Mr. Amey replied that forward of any structures or outbuildings, the properties are all usable without having to do any construction like he did. There are no homes in the area that have an acre like his; their properties stop at the edge of the hill that goes up. In the area of the soccer field portion, those homes all have flat back yards that lead up to the edge of the soccer field. There was a comment made about parties at all hours of the night and all the friends. Mr. Amey stated that that is actually about a dozen kids that live on the adjacent street to Walker. They all use the field for various friend gatherings, as do his children. Ms. Rabaut referred to the photo on packet page 95 and recalled from testimony that Mr. Amey stated he had planned to put the path to the right of the barn. Mr. Amey agreed that that is where he wanted to go around and up. Ms. Rabaut also recalled from testimony that he later stated he only disturbed that area because there was trash back there. Mr. Amey clarified that he wanted to be able to go that way with a foot path. There was no intent to change grade; it was just to clean out what was back there. He also clarified that all of the excavation happened within the same period of time. There was no further excavation aside from trying to put back what was on that side. The dirt that he was removing from that side as part of the refuse cleanup and leveling out the top of the hill had already happened and the grade to go down the hill, where vegetation was removed, remains at the same grade that it was for a large majority of the hill. Mr. Amey referred to sheet C2 on packet page 39 and explained for the record that the red area at the face of the barn on the north side and coming south along the east side of the barn is an uphill grade. That grade, from the face of the barn to the back of the barn, was unchanged contour- wise. From the back of the barn to the peak of the hill, which rises from the back of the barn to the peak of the hill, he removed 4-5’ of dirt and that dirt went south into the soccer field area prior to the turf installation on the field. The area south of the barn, shown in blue on sheet C2, was the original path he had taken to access the area at the top of the hill. When he was told he could not change the contour of the land and that he needed to reestablish the contours of the land is when he began replacing dirt in that area where he had significantly changed the contours. Mr. Amey clarified for Ms. Rabaut that the path they are using to walk up the hill now is on the east side and that was the path he took to bring the dirt back to the barn area. He was going down the hill and coming around the front of the barn to dump it. Ms. Rabaut referred to packet page 100, a photo of the path on the east side. The testimony was that he drove up and down it but it is a hard packed surface. Mr. Amey again stated that the only soils he brought in were for the sake of stabilizing the erosion on that hill to prevent any wash out. He brought in landscaping materials, ground cover, and landscape stones but he hasn’t changed the grade by removing or adding any dirt to that area. Board of Zoning Appeals Meeting Full Page 11 March 17, 2022 Ms. Rabaut asked if he thought about the disturbance to the east side after being told it wasn’t acceptable on the west side of the barn. Mr. Amey replied that he understood he could not change the contour or add or remove dirt. Whether he was allowed to access the back of his property was never a question in his mind. Ms. Montgomery recalled that Mr. Amey mentioned creating the access on the west side. She asked if he intended to have a west side and east side access point. Mr. Amey replied no. Ms. Rabaut invited public comment. Tom VanGemert, Westside Connections Neighborhood Association, noted that he submitted information and hopes that the Board had time to review it. Mr. VanGemert recalled Ms. Rabaut mentioning that the west side of the hill was not to be used and then he decided to go to the east side to make that path. No one told him not to do it because he never asked. It is very simple; he didn’t apply for a permit he just did it. That is what he has done through most of everything. He has ignored everyone’s advice and did what he wanted to do until it reached this point. Mr. Amey talked about the trash and junk he took away from the hill. Most of what he calls trash was cement and there was rebar in the cement. When they filled that property in a long time ago they would dump road construction debris in the back, including dirt. When he was finding that, it was already existing. It wasn’t something the neighbors put in. It probably stabilized the hill. It wasn’t something that needed to be removed. Mr. VanGemert recalled Mr. Amey mentioning that he was confused about permits and that he needed to get them. Mr. Amey has a company called Harbor Hawk and they do barrier walls on Lake Michigan. He knows what needs to be done for permits or he wouldn’t be doing that work. Why would you not know to get a permit to do what he was doing? There have been a lot of excuses as to the reason why not, but that is beside the point. The public notice sent out states grade or removal of vegetative cover for building sites on slopes less than 20% and anything over 20% there is no removal of vegetative cover for the building site and wall material is not permitted to be wood. These notices indicate things he has already done. Mr. VanGemert doesn’t know why the Board should award the variance and he really needs to bring everything back to the way it was. If it doesn’t happen it will open up pandora’s box and there will be other issues to deal with. Thomas Kawall, 1410 Walker NW, stated that he has a phone and he does call in violations. As to the years of this going on, Mr. Kawall stated that he has noticed a lack of morals with City employees due to the fact of the continuation of all the violations, postings, and everything else that has gone on. This is not something that just was created; it has been an extensive time. There was a zoning violation posted by Nicole Pfiefer on his house on 5/28/19 stating zoning corrections 6/27/19. The posting included all the violations of the Articles and provided an opportunity to apply for a variance. The violations included that plans should be submitted first and that there should be no removal of the slopes. At that junction, this wasn’t where it was at. This is where it has progressed because of the fact that no one followed through with the original violations. It says steep slopes should be approved prior to removal. If that had been taken care of we wouldn’t be here today nor would there be fences or anything else put up. Mr. Kawall added that there was a series of postings on the property in regard to all the things that have gone Board of Zoning Appeals Meeting Full Page 12 March 17, 2022 on. His costs of what he says he put in is not an issue. It states that nothing is supposed to be brought up with regard to the costs. The path is actually a driveway. Any City walking path, or similar, usually has a 6 x 6 post blocking it so you can’t drive up it. There are photos of trucks parked on the path and other things that have gone on. Mr. Kawall stated that this really should be denied. When he is out taking care of his lawn, he has had people stop to ask him what is going on on the property. He suggests they call Zoning because he is tired of it. Mr. Amey also moves machinery on his property, which is also a violation in terms of an owner operating a business in a residential area. Mr. Kawall stated that if the Board doesn’t deny this variance there will be law suits and he can guarantee that the owners of 960 Bristol will just start doing work because nothing was done in this case. Mr. Kawall asked that the Board please deny the variance. Gail Koel, 1001 Calvary NW, indicated that she had something new to report since she last provided public comment in November. In 2019, when Mr. Amey was doing work on the back slope, a neighbor and his wife confronted him in Ms. Koel’s presence and told him that they thought it was her tree that he was about to cut down. He stopped the work but later that night the neighbors told her that he came back and he cut the tree down. They posted a sign on another tree that said “do not cut down this tree”, which is the old mulberry tree between their two properties. In December there was a great wind and half of that tree came down. What happens is when you destroy the roots of the trees, they go down. Her immediate concern is the safety of the soccer field and the neighborhood children that have been invited to play on it. Ms. Koel related that she has a picture of two children that were doing gymnastics on the warped board of his retaining wall. She was worried as she is the only one that has that view and she told their parents. Those kids have never done gymnastics again on that warped board. Ms. Koel’s concern is that there is a tree, actually three together, and whether it is going to come down. It took a couple of years for the mulberry tree. She wonders how safe her property is because if that tree comes down it will affect her property. Ms. Koel agreed that there are civil issues between the property owners but the common issue is safety. Motion by Mr. Kilpatrick, supported by Ms. Swanson, to close the public hearing. Motion carried unanimously. Mr. Kilpatrick asked Mr. Tabor if there is a reason block or stone is the preferred material over wood for retaining walls. Mr. Tabor felt that would be better addressed by the Building or Planning Dept. His experience is in stormwater, soil erosion, and municipal engineering. Mr. Fitz replied that his understanding of why that came to be was purely related to longevity of the material. Wood doesn’t last as long as block, concrete, or brick. Mr. Stella asked, when considering voting on this request, are they to consider this request as if none of the work has been done or do they take into account everything they’ve heard today? Ms. Rabaut recalled from the last meeting that they were told to look at this as if none of the work had happened and would they have allowed the encroachment into the 20% slopes and would they have allowed the materials. Board of Zoning Appeals Meeting Full Page 13 March 17, 2022 Mr. Fitz replied that clearly work has been done but the Board should consider the Standards as if nothing has been done. Ms. Beebe added that while how much he has paid in fines may not be relevant, the Board will also be considering the Standard that evaluates whether it was self-created. If some of the work he has done weighs upon whether or not some of the hardship he is having now is self-created, the Board can use that in their determination. Ms. Schaffer recognized that there is a lot in the record from neighbors and the Board heard from neighbors today. She wished to clarify that what the Board is considering is the change in the slope around and behind the garage as well as the wood retaining walls as opposed to comments about the trees or other violations that may be being addressed through other venues. Mr. Fitz stated that initially they didn’t have an accurate existing contour map to know exactly what was disturbed in the 20% steep slope area, which is why the public notice was written the way it was. The steep slope areas include the path that was constructed, the retaining walls and the retaining wall next to the soccer field; everything highlighted in blue and red on the plans. Mr. Amey was invited to respond to the public comment. He noted that much of what has been discussed was in regard to what he should or should not have done. As he stated before, his goal is to find a solution. Putting the slope back to the angle that it originally was would take construction materials and walls to be built to bring it back to that slope. Mr. Amey stated that he is willing. He would just like to get some forward movement out of the Board’s action vs. a denial and starting over again. With respect to how much has been spent to facilitate this plan is an effort to show his sincerity and that he really does want what everyone wants in this scenario. Mr. Kent referred to sheet C2 and asked Mr. Amey to discuss the plans that were revised by the engineer specific to the blue area and what they are proposing to do there, as well as the improvements along the embankment per Mr. Tabor’s request from the meeting on site. Mr. Amey stated that regarding the long process of planning and getting everyone on the same page about what the intended goal was, the blue areas south of the barn is an area that was disturbed though the contours are not different now, although they were while he was working back there. Replanting the blue area behind the barn is the reason it is outlined. It says restoration area in the key on sheet C2. The earth berming is a commitment to ensuring that no water now or in the future is draining to the east off of this property, although it did prior based on the contour study. The black arrows on sheet C2 delineate where the water currently flows. There is an arrow that runs to the northeast from the property line but that is the pinnacle of the hill that has not been disturbed. The water continues to run that way over vegetated and undisturbed soil. Mr. Kent asked what details are included in the planning of it. Mr. Amey stated that the key outlines mulch matting, replanting of indigenous vegetation, and restoration of the dirt surface with vegetation. The berming going down the path is further work to be completed to ensure the direction of the water flow. All of the area in the yard has been Board of Zoning Appeals Meeting Full Page 14 March 17, 2022 seeded and restored. Mr. Amey added that if there are any other opportunities to improve this, in anyone’s opinion, including neighbors, none of that can happen without an approval by the BZA. He can’t apply for a permit or do any work. The goal is to find the plan and have it approved here, which he has gone to great lengths to propose. He is open to amending or adapting the plan in any way to facilitate an approval as is required at this point. The way it has been explained to him is that he can’t do anything without a variance because they would be working in slopes over 20%. Even if it is putting it back to the way it was, there will be construction involved in the steep slopes. Mr. Kilpatrick stated that what he is hearing is that there is no resolution to this scenario without coming back to this body with a plan that changes the slope. He asked if that is accurate. As he understands it, this site cannot be restored to its original contour without a plan that changes the slopes in an area with slopes of 20% or greater and that plan would come to this body. Mr. Fitz explained that the Board could defer that to the LUDS permitting process to reestablish the steep slopes. Mr. Kent added, regardless of approval or denial, Mr. Amey will need to get an approval of a LUDS permit to either restore it back to its original state or to approve what is being proposed before the Board today. Mr. Kilpatrick clarified that restoration to the former state does not require the plan to come back to the Board. Mr. Kent didn’t believe so. It would be for staff to review. Mr. Amey asked if that was the case despite the fact that construction of structures would be necessary to hold the slope. He explained that in order to restore it there must be structures to restore the slope that is there. You can’t even put compacted aggregate back in that area and then plant on it without erosion happening on some level. Therefore, there would need to be berming or a change in the grade from what it was previously, even if only temporarily; construction of damns or something to hold back the slope that was there, which would include silt fences and other things. If the engineering firm plans to restore all of this required structure on some level, would that have to come back the Board? Ms. Turkelson explained that staff expects to see a plan before making a final determination on whether it would come back. However, generally speaking, if the Board were to deny this variance the expectation is that it would be restored back to its previous condition. If that were the case then that would be done through the LUDS permitting process, which would include Mr. Tabor’s team as well as Planning. If it could not be restored back to its previous condition and there had to be some sort of mitigation put in place, depending on the extent of what needs to be done would determine whether it could be done at a staff level or come back to the Board. A denial today would seem clear that the expectation is that it be restored to its previous condition to the extent possible, understanding that it is impossible to replicate it exactly but that something similar would be expected. Board of Zoning Appeals Meeting Full Page 15 March 17, 2022 Ms. Rabaut clarified that if that were the scenario, they are looking at benefiting the property over decades because it will take time for trees and other vegetation to grow. Ms. Turkelson agreed. Mr. Amey explained that he asked that question specifically in the beginning; if there was any way he did not have to come before the Board of Zoning Appeals. He never would have gone through the expense of all of this because he was told he could not do anything until he had a plan that has been approved by the Board of Zoning Appeals to restore it back to what it was before. His original question was what he could do to make this go away. If he had been given the option to restore it, he would have alleviated all of this hassle. The answer he got on every level was that he had to go through the BZA and that he couldn’t touch it until doing so. Ms. Turkelson agreed with Mr. Amey. It was disturbed so at that point it had to come before the BZA to determine what actions need to be taken. The fact of the matter was that there were improvements that did affect the steep slopes that were in place. At that point, the restoration moving forward was unclear without the Board’s determination or guidance to staff. Mr. Fitz added that they continuously asked for a plan but never received anything they could evaluate to determine what could be done to the site. Mr. Kilpatrick explained to those present that there are five standards the Board has to apply and they must meet all five standards. Those standards are: exceptional or extraordinary circumstances; substantial property right needs to be at risk; whether it is self-created; whether it imposes substantial detriment to neighbors; and whether it satisfies or meets the requirements and expectations of the Master Plan and Zoning Ordinance. This is a difficult conversation because of the work that has been done. He feels that there is a standard of reasonableness regarding the retaining walls but, were they looking at this as though nothing had been done yet, he doesn’t feel it meets the test for all five standards to say a variance is appropriate. In particular it is the issue of substantial property right he is struggling with because the property is and was usable with or without the retaining walls and with or without the driveway and soccer field and a variance would be required to provide any of those things on the property. The property was usable and he was able to take advantage of his right to occupy a single-family home. Additionally, the garage didn’t seem to be impacted by the impaction of soil behind in. Mr. Kilpatrick MOVED TO DENY based on the following findings: 1. Exceptional or Extraordinary Circumstances or Conditions. There are exceptional or extraordinary circumstances or conditions applying to the property that do not apply generally to other properties in the same Zone District or in the general vicinity. Mr. Kilpatrick feels there are exceptional and extraordinary circumstances related to the topography of the site that don’t impact other properties. 2. Substantial Property Right. That the Variance is necessary for the preservation and enjoyment of a substantial property right similar to that possessed by other properties in the same Zone District and in the neighboring area. Mr. Kilpatrick does not feel there was a substantial property right that was at risk. Board of Zoning Appeals Meeting Full Page 16 March 17, 2022 3. Not Self-Created. That the immediate practical difficulty causing the need for the Variance was not created by an action or inaction by the applicant or the applicant’s predecessors in title. If thinking about the site prior to the work that had been done, and this application were before them on a clean slate, the finding would be that it was not self- created. However, they have improvements that have been made that seem to be functioning okay but don’t comply with the Zoning Ordinance. Allowing to preserve those on site would be to support something that was self-created. 4. No Substantial Detriment. The Variance, if granted, would not cause substantial detriment to adjacent property and the surrounding neighborhood. In hearing from City staff, it does not appear that the proposed changes to the topography are causing substantial detriment, which is what is relevant to this particular request for a variance. He isn’t sure about the status of the trees and whether those propose a substantial detriment, or not, but he doesn’t believe the change in topography is a risk. 5. Master Plan/Zoning Ordinance. The Variance, if granted, is consistent with, and not materially impair, the purpose and intent of the Master Plan and the provisions of the Zoning Ordinance and District under consideration. Mr.Kilpatrick stated that the Zoning Ordinance clearly states that you shall not disturb soils or steep slopes of 20% or greater and he believes the Master Plan also speaks to that. SUPPORTED by Ms. Schaffer. Mr. Kilpatrick clarified that the motion is for both requests and, if making separate motions, he would provide the same justification for both. There was additional discussion about imposing conditions on the denial. It was determined that conditions weren’t appropriate as it would now be addressed through enforcement of restoring the site. Mr. Kilpatrick clarified that what they heard today is that if a plan is proposed with an application for a LUDS permit, to restore the slopes to their original condition, staff can likely do that without need for a request for a future variance, unless something comes up that is unforeseen today. Mr. Kent agreed. The question was called. MOTION CARRIED UNANIMOUSLY. Ms. Turkelson addressed the Board and those present explaining that restoration is going to take time. It is not a situation where Mr. Amey is going to pull the walls down and call it a day. The remedy is going to take time, to work together to figure out a plan and to determine the path forward. Ms. Turkelson did not wish to put a time line on that but stated that they will continue to be proactive in working with Mr. Amey and require him to meet reasonable deadlines. This isn’t going to be something that they will be out there tomorrow fixing. It is simply not reasonable from a practical standpoint on the owner’s end, nor on staff’s end. They will have to receive adequate plans in order to make future determinations about what constitutes reasonable restoration and what process that would need to go through. Board of Zoning Appeals Meeting Full Page 17 March 17, 2022 RESULT: DENIED [UNANIMOUS] MOVER: Ryan Kilpatrick SECONDER: Cortney Schaffer YEAS: Rabaut, Swanson, Schaffer, Kilpatrick, Montgomery, Stella ABSENT: Zeiser, Castanon, McCoy, Lewis, Alexander V. Discussion VI. Adjournment The meeting was closed at 2:45 PM