Board of Zoning Appeals Regular Meeting

Development Center Board of Zoning Appeals 1120 Monroe Ave NW Meeting Full Grand Rapids, MI 49503 April 20, 2023 Public Hearing Room, 2nd Floor I. 12:00 - 12:30 p.m. Commissioner's lunch - Room 303 PRESENT: Rabaut, Zeiser, Swanson, Schaffer, Kilpatrick, Montgomery, Stella, Lewis ABSENT: McCoy, King Staff Present: Kristin Turkelson, Tyler Kent, Dale Fitz, and City Attorney Mike Hoeker and recording secretary Carol Gornowich II. 12:30 p.m. Roll Call III. Approval of Minutes 1. No minutes to be approved. IV. Public Hearings beginning 1:00 p.m. or soon thereafter in the Public Hearing Room, 2nd Floor A. 1:00 PM - P-BZA-2023-0002 - Dimensional Variance Address: 800 Fairview Ave NW Case Number: P-BZA-2023-0002 Applicant/Owner: Andy Guy Sanborn Variance Type: Dimensional Requesting: To construct a 2-story addition, with the southeastern section extending into the front yard, to within 22 ft. of the back of curb, on Newberry St NE. In the TN-LDR zone district the Required Building Line (RBL) from the back of the curb to the building facade structure is 30 ft. (Note: In 2010 a Dimensional Variance was granted to allow a 1 story addition to extend into the same front yard area as described above.) Permitted: RBL – 30 ft. Variance Needed For: 8 ft. Lot Size: Frontage: 50 ft. Depth: 120 ft. Area: 6,000 sq ft. Zoning: TN-LDR Inspection: Lewis Ordinance Sec. 5.5.06.D.2. Generated 4/27/2023 10:53 AM Board of Zoning Appeals Meeting Full Page 2 April 20, 2023 Previous Appeals and See Attached Disposition: Mr. Fitz introduced the request relating that the applicant is requesting a dimensional variance to construct a 2-story addition, with the southeastern section extending into the front yard, to within 22 ft. of the back of curb, on Newberry St. NE. Mr. Fitz explained that in the TN-LDR Zone District the Required Building Line (RBL) from the back of curb to the building façade structure is 30 ft. Mr. Lewis provided the inspection report. He identified the location of the property at the corner of Newberry and Fairview. The home is a two-story structure, which the applicant states was constructed in the 1800’s. It would appear that it has been renovated a couple of times. There is an existing structure that encroaches into the side yard by approximately 8 ft. from the base of the structure, which is approximately 14 ft. long. His understanding is that structure has been there for a number of years, prior to the applicant’s purchase of the home. As a corner lot, the property is considered to have two front yards. Mr. Fitz related that there was a dimensional variance granted in 2010 to allow a single-story addition to extend into the same front yard area as is being requested. The applicant indicated at the time that there was a problem with water going into the basement. The Board approved the variance to allow the addition to address the water issue. Andy Guy was present on behalf of the request. He recalled that he was before the Board in November of 2022 with the same request. There was some confusion with the process and the project. He received some good support from the Board but not what was needed for the motion to carry. In reflecting on the conversation, he felt there was a lack of information provided to the Board to help inform their decision. Mr. Guy thanked the Board for recognizing that the proposed project is worthy of further consideration. Mr. Guy displayed slides depicting that the encroachment into the front yard is a very common condition in the neighborhood, particularly on corner lots such as his. Mr. Guy also displayed photos of the subject property existing conditions and renderings of the proposed addition, which is a modest addition going on top of the area already in the side yard; the existing mud room. The addition will allow them to expand the second floor with two bedrooms and a bathroom. They will also be making some significant kitchen improvements, improve the basement access by bringing it interior, as well as new siding and a new roof. Mr. Guy continued to display photos of other homes in the neighborhood that encroach into the front yard. He explained that he and his daughter identified approximately three dozen properties within 4-5 blocks of their home that have a similar condition. In some cases it is 10 ft. and in others 29 ft.; there is a wide range of variance in the neighborhood. Mr. Guy indicated that it is not only historic structures that enjoy this condition but also new construction. He displayed a photo of an infill project on the same block that was constructed in the last few years. The significant piece of property was previously occupied by a single-family home. The house was demolished and the proposal was to construct three structures on it. All three of the structures are within the 30 ft. setback. Presumably, upon demolition of the former structure, the City could have required the new structures be sited anywhere on the lot. There is certainly enough room to meet the RBL but because there is an interest in expanded housing and incremental gentle infill in the Belknap Board of Zoning Appeals Meeting Full Page 3 April 20, 2023 neighborhood, the project was approved. It turned out very well and has been very successful. Additional photographic examples were displayed. Mr. Guy related that the Belknap Area Specific Plan encourages renovation of existing structures. It also promotes buildings facing up close to the sidewalk to encourage walkability and other neighborhood character. Mr. Guy emphasized that what they are proposing is not extraordinary. It is designed to fit in with the character of the neighborhood, consistent with the values and recommendations in both the Belknap ASP and the Master Plan as it relates to home ownership, supporting families, renovation, walkability, gentle infill, and incremental density. They feel the project is consistent with where they are trying to go as a community, particularly when there is such a housing shortage and it is necessary to be creative with every piece of land. Mr. Guy stated that the proposed project is all on the existing footprint. They aren’t proposing to use up any more greenspace. They are actually hoping to gain some greenspace as they remove the outdoor access into the basement and potentially rethink the driveway at a later date, which is a future goal. Mr. Lewis asked the condition of the property when he purchased it, specifically related to the bump out in question that they propose the addition on top of. Mr. Guy stated that they bought the property several years ago. It was pretty run down and they’ve done a significant amount of work internally on the skeleton of the building. It was cobbled together and you could tell how, from 1880, they went from one room to two and then up and out. The side porch structure was very problematic in how it was constructed and how the roofs were shedding water onto it, which was creating some significant leakage in the house. That was why they proposed to rebuild that and go on top of the existing footprint of the porch and side structure that was there to correct that issue. It is one of the reasons they have designed the proposed addition the way they have. They don’t want to have a flat roof structure if there is a roof above shedding water down onto it. Ms. Montgomery clarified that the proposed addition allows them to add two bedrooms and a bathroom in the second story. Mr. Guy agreed, and a laundry room. Ms. Rabaut recalled that there were six letters submitted in support of the addition. She invited public comment. Brian Bramer, resident at 749 Livingston and owner of 743 Livingston and 742 Fairview, agreed that the subject house was a mess. He agreed it was cobbled. It appeared to him at the time that someone tried to put an efficiency apartment upstairs but never quite finished it. The people that lived downstairs before Mr. Guy were in their 80’s. When he bought it the main floor ceiling was caving in because of the water damage. Mr. Guy has done a wonderful job to bring it to its current condition. There was an open porch with water pouring down. Mr. Bramer related that he also has a bay on his home at 749 Livingston going out nearly as far as the proposed addition. It fits the neighborhood and he feels it will be a great improvement. Mr. Bramer stated that he feels this is a nice opportunity to make a nice unit. Board of Zoning Appeals Meeting Full Page 4 April 20, 2023 Motion by Ms. Schaffer, supported by Ms. Montgomery, to close the public hearing. Motion carried unanimously. Mr. Lewis addressed the points: 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. This is a historic house with a historic footprint and that footprint was there before the zoning standard was in place. It seems that the RBL has encroached on the footprint of the building and not the other way around. The applicant was allowed to enclose the porch at a previous date and what is proposed is to build atop that creating a second story. This point is met. Mr. Fitz clarified that the variance was granted for the porch to go into the front yard. Previously the footprint of the house, without the open porch, met the RBL requirement. The variance granted in 2010 allowed the footprint to go further out. 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. The property owner has the obligation and right to maintain and improve his structure, as do other property owners in the zone district. If it is necessary to go through this process every time he wants to maintain the structure then the Zoning Ordinance is a detriment to his property right. This point is met. Mr. Fitz added that there are many homes in the area setback less than what is being requested; they are non-conforming. Mr. Lewis asked to include Mr. Fitz’s comment under substantial property right. 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. The difficulty has not been self-created. The structure was present when he purchased the property and he has been maintaining it and bringing it up to standard over the course of his ownership and this is the next step in that process to get the exterior of the building and roof shedding the water as he intends in order to keep the structure in good condition. The point is met. 4. No Substantial Detriment. The Variance, if granted, would not cause substantial detriment to adjacent property and the surrounding neighborhood. The proposed is not a substantial detriment to neighboring properties. There are many properties that have very similar conditions. Additionally, there have been many letters of support submitted and no opposition. The point is met. 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. The Master Plan supports the maintenance of existing structures and their upkeep to promote diverse character in the neighborhood. The point is met. Board of Zoning Appeals Meeting Full Page 5 April 20, 2023 Mr. Lewis MOVED TO GRANT. SUPPORTED by Mr. Kilpatrick. Ms. Rabaut recalled that she previously had issues with this request because she believes the applicant can do what they desire within the boundaries of the Ordinance. There is plenty of room to build what they want over the original structure. She also hesitates, and has over the years, expanding upon a previously granted variance and to add a second story would do that. Ms. Rabaut related that she has given this case a lot of thought since it was last considered because the improvements are great. The question comes down to how much is trying to be fit into the additional second story space. In her opinion it is possible to reconsider the layout so the variance wouldn’t be necessary. Her struggle has been with point one and whether there are extraordinary circumstances here. Those continue to be her concerns with the request. She understands there are land expansion possibilities but to her that is out of the scope of reason because that involves new foundation, etc., which makes no sense in a building like this in the neighborhood it is in. Ms. Turkelson concurred with Ms. Rabaut that while there is opportunity to expand, especially to the north, that physical expansion will require additional footings and that also then has an impact on the neighbors to the north because it reduces the light and brings the massing closer to a neighboring structure whereas, because this is a corner property, bringing the home toward the street has less of an impact in its massing on adjacent residential structures. Bringing massing closer to the street certainly has an impact on the pedestrian realm but that impact has already been made in that the ground floor mud room is 14-15 ft. That massing has already been created so, in theory, that impact to the pedestrian realm has been made. Generally speaking, when going to a second story or above, to a certain extent that impact is less than what it is on the ground floor. The impact on the pedestrian realm was found to be consistent with the purpose and intent of the Ordinance with the granting of the previous variance. The question was called. YEAS: 6. NAYS: 2 (Rabaut & Zeiser). MOTION CARRIED. RESULT: GRANTED [6 TO 2] MOVER: James Lewis SECONDER: Ryan Kilpatrick YEAS: Swanson, Schaffer, Kilpatrick, Montgomery, Stella, Lewis NAYS: Lynn Rabaut, Lawrence Zeiser ABSENT: Bruce Anthony McCoy, Jeffrey King B. 1:20 PM - P-BZA-2023-0001 - Use Variance Address: 701 Knapp St NE Case Number: P-BZA-2023-0001 Applicant: Eric Easterday Owner: Michael Kraus Board of Zoning Appeals Meeting Full Page 6 April 20, 2023 Variance Type: Use Requesting: To use an existing commercial building for a tattoo shop, with one residential dwelling located on the 2nd floor, and off-street parking for 4 vehicles. In the TN-LDR zone district tattoo shops are not permitted. Lot Size: Frontage: 40 ft. Depth: 111 ft. Area: 4,440 sq. ft. Zoning: TN-LDR Inspection: Lewis Ordinance Table 5.5.05.B. Previous Appeals and See Attached Disposition: Mr. Fitz introduced the request for a Use variance to use an existing commercial building for a tattoo shop, with one residential dwelling unit located on the 2nd floor, and off-street parking for 4 vehicles. A Use variance granted three years ago for a restaurant was granted approval for three parking spaces. The Zone District is Traditional Neighborhood-Low Density Residential. Mr. Lewis provided the inspection report. The structure is a two-story building on the corner of Knapp and Edgewood. The ground floor was originally constructed for a commercial use with storefront on Knapp and no windows along Edgewood. The second story entry is on the Edgewood side facing Knapp. There appears to be a 2nd floor residential unit. Behind the structure is what was likely gravel surface at one point and is now grass covered gravel. Most of the lot and structure aren’t in particularly good condition from the exterior. There is a large blade sign advertising it to be a party store but the ground floor of the building has been derelict for many years. There is a curb cut to the gravel area at the rear off of Edgewood. Eric Easterday was present on behalf of the request. He explained that the main floor is approximately 1,800 sq. ft. He would like to develop four enclosed, private tattoo booths and two restrooms. There would also be a waiting area and the back area would be the artist area for drawing, etc. The business would operate by appointment only. The second floor will be a three- bedroom apartment. It has a large covered porch that he may consider turning into a four season room to make the unit a bit larger. There would be a laundry room, restroom, three bedrooms, living room, dining room and kitchen. Mr. Easterday stated that the parking was already approved and his intent would be to follow that plan for the back yard area. Mr. Easterday clarified for Mr. Lewis that he hasn’t purchased the property yet. The purchase is contingent upon receiving the variance. Ms. Schaffer recalled from testimony that it would be by appointment only and there would be four booths. She asked how many people he would estimate would be on site at one time. Board of Zoning Appeals Meeting Full Page 7 April 20, 2023 Mr. Easterday replied 2-3 artists at one time. On a busy day it may be possible for all four artists to be there, depending on the time of day. He related that he currently starts working at approximately 10 a.m. He recently sold his building in Kentwood and is currently working out of a shop on Plainfield. That location is also by appointment only. At times he is there working alone and other times there are 3-4 artists working. Consults would also be appointment based. Ms. Montgomery asked the anticipated hours. Mr. Easterday replied that most artists work from approximately 10 a.m. to 5 or 6 p.m. However, sometimes, because it is a service industry he will work until 10 p.m. for people, especially if they work a different shift. Mr. Lewis asked if he has consulted with a contractor for estimates on the project. Mr. Easterday replied that he has consulted with a contractor and they have done a walk through. He estimated it could be up to $200,000 for both floors. The second floor is not currently occupied. The walls are down to the studs and there is a hole in the floor that looks down to the main floor. Everything, including the roof, would be replaced. Mr. Lewis clarified that he would be restoring a unit of housing as well as operating the business. Mr. Easterday agreed. He added that when he went to the neighborhood association with his plans, they were pleased that there would be a three bedroom apartment there. Ms. Rabaut asked, with the limited parking, if that may require more parking than two spaces. Mr. Easterday would imagine that would have to do with the makeup of the household that moved in. Ms. Rabaut asked if he would be relocating the Plainfield business to this site. Mr. Easterday replied no. He is currently renting a booth and he would rent the additional three booth spaces here. Ms. Rabaut referred to the floor plan. It appears that the work spaces are not visible from the street. Mr. Easterday related that one would be visible. In other locations he has worked, the booths are typically interior to the building. A pedestrian walking along the street would have visibility of the waiting area and one artist work space. If approved, he would have someone come in for a Crime Prevention Through Environmental Design (CEPTD) review. Mr. Easterday responded to additional questions relating that the building he is currently working out of on Plainfield is not in a residential neighborhood. Ms. Rabaut suggested neighbors may be concerned about how late the business is open, especially given the limited parking. If four stations are open at any given time that would result Board of Zoning Appeals Meeting Full Page 8 April 20, 2023 in at least eight people on site, in addition to the residential tenants. If the Board were to limit the hours of operation, she asked what the preferred hours would be. Mr. Easterday explained that he would never work into the late night. If someone is working during the evening there would typically only be a couple of cars there. Most artists don’t want to work until 10 p.m. He does that to accommodate clients occasionally. None of the artists at the location he is working from currently work that late. At the location he worked from before opening his own location everyone was gone by 8 p.m. He would occasionally work late just to accommodate a client. Ms. Turkelson explained that, when considering limiting hours of operation, the hours are set based on what is available to the public, or in this case by appointment. She would encourage the Board to establish the hours of operation, which is within their purview. She suggested perhaps all customer appointments be finished by 9 p.m. weeknights and 10 p.m. weekends. That doesn’t prevent an artist or the owner from doing office work or drawings. The limit on the hours of operation are specific to when the facility is open to the public or open to customers. The Planning Commission often imposes different hours for weeknights and weekends, with weekday hours being more restrictive. She suggested public input may inform the Board with respect to what may be appropriate in the neighborhood. Ms. Montgomery noted that the hours were limited in the previous use approval; 7 a.m. to 3 p.m., Monday through Saturday. Ms. Turkelson agreed that the hours were restricted. There was a bit of a nuance there. Her recollection is that the restriction was more important because of the intensity of the use being a restaurant and the demand for parking. A by appointment only business, with four booths, would have a more limited turn over; not quite as intense as what it would be for a restaurant use. Ms. Rabaut asked how many days of the week he would be open. Mr. Easterday replied that he was going to leave that to the artists that rent space. There is potential someone could be there 7 days a week. Not all four artists would be working every day. The odds are that an artist would work 4-5 days a week. Mr. Easterday added that all of the houses on Edgewood have off-street parking so there is parking available on the street. Parking was also a concern of his and the neighborhood association didn’t feel it would be an issue because of the off-street parking. There is also parking available on Knapp St. Ms. Rabaut asked if there would be a dumpster on the property. Mr. Easterday didn’t feel a dumpster would be necessary. They don’t create much waste and a roll-away cart should be sufficient. If a dumpster is required, he would remove one of the four parking spaces, which is what was planned for the restaurant use. Mr. Easterday added that at a previous location, with 6 artists, a City cart was sufficient for their needs. Mr. Stella recalled that one of the letters expressed concern about lighting. He asked what the plans are for lighting and signage. Board of Zoning Appeals Meeting Full Page 9 April 20, 2023 Mr. Easterday replied that the author of the letter would not be able to see the sign at the front. With respect to lighting in the parking area, he will meet all safety standards and comply with requirements. He doesn’t anticipate any additional signage other than what is on the front. Mr. Easterday stated that he has been working as a tattoo artist in Grand Rapids for 20 years and all advertising nowadays is word of mouth and online. He will either take the liquor store sign down or reface it with a sign that would say “East”. He prefers to keep it nondescript being by appointment only. That way it doesn’t promote people just stopping in without an appointment. Ms. Rabaut asked how he would treat a walk-in. Mr. Easterday replied that they get turned away or an appointment would be scheduled. Even consults are by appointment only in order to give their full attention to the clients that are scheduled. Ms. Turkelson explained that the Zoning Ordinance has maximum lighting levels. Should new parking lot lighting be installed, details would be required prior to the installation that measures pole height, that they are full cut-off fixtures so that lighting is directed downward, and there are requirements that lighting levels are turned down or off when the business is not in operation. Mr. Fitz added that a LUDS permit would be required and would address the parking lot improvements, lighting, landscaping, etc. The parking area would have to be hard surfaced. They would be 20 ft. spaces and vehicles would back out into the street the same as a typical residential driveway. Ms. Turkelson added that the Ordinance doesn’t require a commercial dumpster. If one is needed there are also requirements for an enclosure. Based on the use, she anticipates a standard cart would suffice. Mr. Lewis asked if the applicant would have to come back if unable to meet the greenspace requirements. Mr. Fitz replied that even with the three parking spaces the site would meet the requirements for greenspace. Mr. Kilpatrick asked how long the building has been vacant and in disrepair. Mr. Easterday replied approximately 2 ½ years. It was recently gutted. Ms. Rabaut invited public comment. Susan Ward stated that she lives 60 steps away. The proposed use doesn’t provide any value to their homes. More and more families are moving into the neighborhood. She has been a resident there nearly 30 years. Ms. Ward clarified that parking is only permitted on one side of Knapp because of the bike lane on the south side of the street. It is a quiet residential area and she doesn’t want an adult-only business coming in. The applicant says it will be by appointment only but how do residents know that will be the case. There are enough tattoo locations on Plainfield. Ms. Ward stated that other neighbors wanted to attend the meeting to voice their concerns but they work during the day. Residents on her street don’t want this. Ms. Ward responded to Ms. Board of Zoning Appeals Meeting Full Page 10 April 20, 2023 Rabaut that she is not opposed to the second floor apartment. Tenants in that space have never been a problem. Ms. Rabaut asked if she had provided comment when the restaurant use was proposed. Ms. Ward replied that she didn’t receive a notice for that hearing. Ben Halbersma, 715 Knapp NE, stated that the use is not right for the neighborhood. His sister lives at 719 Knapp and has three young children. It would be better if a business that accommodates families were to locate there and not just those 18 and over. Parking is also a concern; 4 spaces is not enough. Mr. Halbersma expressed his opposition. Kyle Nauman pointed out that all five standards must be met for a Use variance. He doesn’t believe that standards 3 & 5 are met. A tattoo parlor is not permitted in the LDR zone district. The zone district designation is intended to preserve the neighborhood quality of being residential. There is a business district .3 miles away to the west that would be better suited for the use. The Fuller Ave. commercial district is .7 miles to the east and also has available storefronts. It seems that Mr. Easterday runs a nice business and Mr. Nauman likes his professionalism. It just isn’t the right fit for the building in this community. Mr. Nauman indicated that he has less concerns about the parking because it was already granted with the restaurant. The difference is the restaurant was a value add to the community; a breakfast and lunch spot where residents could meet. A tattoo shop, by appointment only, is best set for a business district where they can come and go and handle their business. Mr. Nauman feels that addresses point three; it is a detriment to the neighborhood. In 2020 all of the letters submitted were in support of a restaurant, which he feels speaks highly that the neighborhood wanted that. In this case there are at least six letters of opposition. Mr. Nauman doesn’t feel point five is met. With respect to the Master Plan, this is not a walkable addition to the neighborhood. A restaurant, grocery store or hardware store or other use that would be consistent with walkability, close to a bus route and a bike route are all things that match. The proposed business in this specific location doesn’t match what the Master Plan is trying to accomplish for a Low Density Residential neighborhood. Mr. Nauman asked that the Board deny the request. He would be open to a variance for a use that would be a better value add to the community at large. Wayne Hanshue, 2012 Edgewood NE, related that he has a view of the back of the building/mess. It is a good idea that someone do something in the building but with the artists, customers, and residential tenants the parking will be an issue. The three spaces would be occupied just by the artists and that doesn’t count the residential tenants. The neighborhood felt the restaurant was a great idea. Unfortunately, COVID kept that from coming to fruition. Michael Kraus related that he is the current owner of the building and received the previous variance for the restaurant use. He believes everyone understands what happened to the project. He was approved for the variance in November, 2020. He purchased the property at the end of 2019. His funding was pulled and he has exhausted every avenue to fund a restaurant and development. At this point he is trying to pass the property along to someone that wants to breathe new life into it. He understands the potential concerns but he believes that any business that is viable in that space is a good project. They are willing to invest significant time and energy into breathing new life into the building. The building has been a grocery store or liquor Board of Zoning Appeals Meeting Full Page 11 April 20, 2023 store over history. He doesn’t see how the commercial aspect of this building will change without significant changes to the entire building. As previously stated, he has exhausted every avenue. Mr. Kraus stated that he works in the restaurant industry and over the course of three years he lost his job four times, lost all funding, had to dip into his own savings, which is why he is trying to sell the building to someone that wants to develop it. Mr. Kraus stated that he doesn’t know what else to do with this project. He will lose money on the purchase of the building and doesn’t have any ability to renovate it. He has been doing his best to keep it up on the exterior but with the plug being pulled out almost instantaneously he hasn’t had the ability to invest in all the projects that need to happen in the building. Mr. Easterday has a deep desire to do that. Mr. Kraus stated that the restaurant was his dream and to lose that due to no fault of his own is very difficult. Mr. Kraus understands the concerns but would hope there is a way to move forward with this building. Mr. Lewis asked how long the property has been available. Mr. Kraus replied that it has been on the market for five months. There hasn’t been much interest. The interest that has been expressed were offers of such a small amount of money that it actually made him upset after how much he has put into it. To ask him to lose $100,000 because of a global pandemic is difficult. He understands you take risks in business. Mr. Kraus feels this is a good solution for this neighborhood. Deborah Hanshue, 2012 Edgewood NE, stated that her heart breaks for Mr. Kraus. She can only imagine what he is going through after buying the building and the pandemic hit. However, she also believes this is an up and coming community. They have gone through a lot over the 38 years they’ve lived in their home and they have seen the neighborhood come and go. When they first moved in there was a thriving supermarket in that space and wonderful people lived upstairs. The property then changed hands and became a liquor store and then changed hands again with the same use, which was not good. For the last ten years they’ve seen the building decline and take the neighborhood with it. Ms. Hanshue stated that she has no problem with tattoos or the proposal of a tattoo parlor, especially because it is appointment only. Ms. Hanshue appreciates that Mr. Easterday wants to improve the building. However, she agrees with the others that she doesn’t think it is good for the neighborhood. Young families are moving in and she doesn’t feel this is an appropriate business for the space. She doesn’t know where all the cars will go. They barely have space for parking when friends come to visit. Ms. Hanshue isn’t comfortable with the proposal. At first she thought anything going in that would refurbish the building and clean up the neighborhood would be good. However, the more consideration she has given it, and has talked to neighbors, she doesn’t see this as a vision for that neighborhood. Ms. Rabaut again stated that letters were submitted, some of which may be duplicates of the testimony received. The Creston Neighborhood Association also provided a letter. Mr. Lewis agreed that the neighborhood association provided a letter of support with 21 signatures from those that attended the neighborhood meeting and are in support of the project. Motion by Ms. Montgomery, supported by Ms. Schaffer, to close the public hearing. Motion carried unanimously. Board of Zoning Appeals Meeting Full Page 12 April 20, 2023 Mr. Stella found the parking issue curious. How is it that there didn’t seem to be a parking issue when it was a supermarket. Ms. Turkelson replied that she didn’t know for certain. She believes one of the conversations the Board had with the previously proposed use was that it was a use that was servicing neighbors and residents that might have greater flexibility to walk and use transit, or ride their bikes. The hours of operation also make a difference, which was also part of the conversation with the last variance. The business was to be open from 7 a.m. to 3 p.m., which, generally speaking, means that when people are home after traditional work hours that the restaurant use was not going to be in operation. It is possible there was no immediate conflict with the past uses, nor was it anticipated with the restaurant. Ms. Rabaut added, based on the size of the building, it was likely a fairly local supermarket and people were walking to it vs. being a destination location. Ms. Turkelson added that with a personal service business, such as a barber shop or tattoo parlor, the business model is that you have a person providing the service and you have people waiting for the service. It tends to be a bit more intense in terms of the nature of the use. Doctor and medical offices are similar where the business model is you bring people in, you provide the service, and then they leave. A grocery store doesn’t have the same intensity all at once; people come and go, particularly with floor plans of this size. Mr. Fitz agreed that parking has been the issue for the uses after the grocery store. Mr. Lewis asked if there are commercial uses that would be allowed in the LDR zone district. Ms. Turkelson replied no. Some limited office uses are allowed such as social service facilities, childcare centers, religious institutions, and schools. There are non-residential uses permitted in a residential zone district but not what would traditionally be considered commercial uses. Because of the nature of the building being constructed for non-residential use on the ground floor, any use that comes forward is likely going to need to go through this process, which is one of the inherent challenges in these situations. That likely limits the number of people interested in purchasing the property because staff would walk an individual through what that process looks like and what the standards are. That can be intimidating and costly with no predictable outcome. Mr. Fitz related that there were a few inquiries for two-family residential use. The lot size and area is too small for a two-family so that use would also require a variance from the BZA. Ms. Montgomery asked, if the requested variance is granted, if it is specific to a tattoo parlor or is there a certain classification of uses that would be allowed. Ms. Turkelson replied it would be specific to a tattoo parlor. If this variance is granted, it is based on the information provided specific to this use. The hours of operation would run with the approval, limited to 4 stations, by appointment only, etc. Board of Zoning Appeals Meeting Full Page 13 April 20, 2023 Ms. Swanson asked if the tattoo parlor were to go out for some reason whether it would have to be used for a tattoo parlor or have to come back for a variance. Ms. Turkelson explained that they could use it for any purpose under the current zoning if possible. Most non-residential uses would likely necessitate a parking waiver from the Planning Commission under Special Land Use. Any other use of this property for commercial purposes would also need a variance because if approved, it is only the tattoo parlor being approved. Ms. Swanson related that she looked at the proposed use as similar to a barber shop or hair salon where it might serve those in the neighborhood occasionally. This type of business isn’t a neighborhood service, you are trying to attract people from a wider range. Ms. Turkelson agreed. A use variance is specific to a use. If this were approved and in 5 years there was interest by a hair salon, they would be advised it would be necessary to seek a new variance. While there could be similarities, it is not under staff’s authority to make the determination that a hair salon is okay because a tattoo parlor was okay. Mr. Stella asked what if a new restaurant wanted to come in. Mr. Fitz explained that unfortunately that variance is no longer valid. Ms. Turkelson added that because it was never acted upon it would require a new variance. Presumably, if all other aspects were the same as in 2020, the Board would make a similar finding. Mr. Zeiser asked if the variance is approved are they also approving the number of parking spaces being provided. Ms. Turkelson explained that three parking spaces per station would be required for the tattoo parlor and 2 for the residential unit; a total of 14 spaces. The Board wouldn’t be granting a variance specific to the parking but it is part of the consideration for the Use variance as to whether the site and amenities, such as parking, are appropriate to support this use in this location. Mr. Zeiser asked if the 14 spaces are supposed to be available off- or on-premise. Mr. Fitz replied that the Ordinance requires 14 spaces on site. They are only able to provide 3 spaces based on the size of the lot without asking for a dimensional variance for setbacks and buffering to the residential. With respect to the reduction in parking, Ms. Turkelson feels that it is relevant that the use is by appointment only. The traditional model of a tattoo parlor where people walk in and wait is a greater impact. However, when it is by appointment only, which is what this business model is proposing, it may give the Board reason to look at parking a bit differently than what the Ordinance otherwise requires. Those are considerations within the Board’s authority, the same as how the Planning Commission would view it. Board of Zoning Appeals Meeting Full Page 14 April 20, 2023 Mr. Lewis asked the least intense commercial zoning designation in the Zoning Ordinance. Ms. Turkelson replied likely Traditional Business Area (TBA) in terms of the range of uses that are allowed. A tattoo parlor would be permitted in a TBA. Mr. Fitz added that in a TBA a tattoo parlor would require two parking spaces per station vs. three. Ms. Rabaut asked if she heard correctly that, per the current zoning, someone could open an office in this location. Ms. Turkelson clarified that a social service office would be a Special Land Use that would be reviewed by the Planning Commission. Mr. Lewis asked if that use would require approximately 6 parking spaces plus the residential spaces. Ms. Turkelson agreed; 3 spaces per 1,000 sq. ft. would be required, plus 2 for the residential use. Mr. Lewis recognized that there likely isn’t a use that would require less than 8 parking spaces. Mr. Fitz agreed, other than residential. A two-family, if approved by variance, would require 3 parking spaces. Mr. Lewis addressed the points: 1. Unnecessary Hardship. That the condition, location, or situation of the specific property or intended use of the property that creates an unnecessary hardship is unique to that property and the Zone District. The structure was constructed and has been used continuously, until recently, for commercial purposes. It would be very difficult to convert the ground floor into residential as allowed by the District. The point is met. 2. Not Self-Created. That the need for the Variance was not created by the applicant or the applicant’s predecessor in title. The hardship is not self-created as the owner/applicant didn’t construct the building. 3. No Substantial Detriment. That the Use Variance shall not alter the essential character of the neighborhood, nor be a detriment to adjacent properties. While there is disagreement among members of the neighborhood, the neighborhood association did provide a letter of support with a substantial number of signatures in support of the project. Additionally, the vacant building that is difficult to utilize hasn’t seen a lot of interest for any purpose, which is a detriment to the neighborhood. Finding a use that is compatible with the space is a benefit to the neighborhood. Mr. Lewis doesn’t find that it would be a substantial detriment to the neighborhood to have this use there. 4. Cannot Be Reasonably Used. That the land, building or structure cannot be reasonably used for the permitted uses in the Zone District. It could be reasonably used as an office, daycare or, at more expense perhaps a two-family but it is more that the market doesn’t bear those uses and there is no interest in them resulting in the building remaining vacant for a long time, which would be more problematic to the neighborhood. It is Board of Zoning Appeals Meeting Full Page 15 April 20, 2023 likely some of the previous uses have been a detriment to the neighborhood. The reasonable uses are challenging in this case. Mr. Fitz added that a commercial structure would be difficult to use in other ways. Mr. Lewis agreed to adding that finding. 5. Master Plan/Zoning Ordinance. That the Variance shall be consistent with, and not materially impair, the purpose and intent of the Master Plan and Zoning Ordinance, including the Zone District. Given that the property is located on a major street, having an occupied commercial structure is consistent with the Zoning Ordinance. Having a residential use above is also consistent with the Zoning Ordinance. For those reasons, Mr. Lewis finds the proposal to be consistent with the Master Plan and Zoning Ordinance. Mr. Lewis MOVED TO GRANT with the following conditions: 1. Hours of operation are limited to regular business hours; 8 a.m. to 6 p.m., 7 days a week. 2. The applicant shall secure a LUDS permit. 3. Transparency is required to be added to the east elevation to improve the look of the building, to be reviewed and approved by the Planning Director. 4. The business shall operate by appointment only. SUPPORTED by Ms. Montgomery. Ms. Schaffer recalled from testimony that they may need to stay open a bit later. She asked if it would be acceptable to allow their hours to run later on the weekend. She suggested 8 p.m. on Friday and Saturday. Ms. Rabaut wasn’t excited about longer hours. They are trying to fit something into an area where it doesn’t belong. Ms. Schaffer agreed. She related that she has significant concerns about substantial detriment. However, if it is going to be approved, she suggested that the hours reflect the request. She recognizes that the neighbors see this as a substantial detriment to their property and the neighborhood they are trying to create. She gives significant deference to those that live in the neighborhood and what they would like in their neighborhood while she fully respects the points Mr. Lewis offered and how difficult reuse of this building may be. However, she can’t get past the fact that the neighbors don’t want it. Ms. Turkelson advised that the neighbors don’t have a decision-making role; they inform the Board’s decision. While it may give Board Members pause for concern, and should be weighted very carefully, you can’t give deference or authority of the decision-making to the neighborhood. Ms. Schaffer understood. When looking at substantial detriment it says it will not alter the essential character of the neighborhood. She is considering the testimony of the neighbors, as well as what is in the packet and letters; that it could possibly alter the neighborhood character. She also understands that the Creston Neighborhood Association has offered support. As they are debating the proposed approval, she is having a hard time getting past substantial detriment. Board of Zoning Appeals Meeting Full Page 16 April 20, 2023 Ms. Rabaut suggested the motion should also address the number of parking spaces, lighting, no dumpster on site, and that service hours be limited to 8 a.m. to 6 p.m. Ms. Montgomery was comfortable with permitting hours until 8 p.m. on Friday and Saturday. Ms. Swanson pointed out that one of the reasons for limiting hours is to minimize the impact. After most of the residents are home, parking on the street, and having friends come visit, etc. expanding the business hours to 8 p.m. is counter to the point behind limiting the hours. If it is the sentiment of the Board to grant the variance, she wants to be sure proper conditions are imposed. Ms. Schaffer explained that she wished to raise the hours as something to discuss because of the extent of their request. It didn’t sound like they would begin at 8 a.m. She recalled the earliest customers would be on site would be 10 a.m. As for the later hours, it was suggested that the Board may want to consider the weekends different than the weekdays, which was her suggestion. If it is the Board’s opinion that the later hours on the weekend would still be a detriment then she would be happy to discuss that as well. Ms. Montgomery felt they could also specify that the limit on hours would apply only to customers being on site and that the artists may be working there later. Mr. Lewis asked if they could get as specific as allowing only one booth to be open beyond a certain hour. Ms. Turkelson replied that they could but it would present an enforcement challenge. Additionally, tying the conditions back to the standards is important. They have presented an application based on the business model they feel would be successful. Generally, they try not to modify that too much. Adjusting the number of booths is a pretty significant impact to their business model. The request could be tabled and ask the applicant to consider a lesser number of booths. Ms. Turkelson would rather do that than try to craft a condition that modifies the application. Mr. Lewis clarified that he wasn’t suggesting modifying the total number of booths but rather allow them to possibly have one booth open after 6 p.m. Ms. Turkelson advised that they could impose that condition because it would be lessening the impact and the hours that are more traditionally residentially focused. Enforcement would remain a challenge. People will see other individuals in the shop and make assumptions and file complaints and they have every right to do that. For staff to know whether there was a customer or a second booth open would be challenging and likely wouldn’t serve the neighbors the way the condition would intend because of the inability to effectively enforce conditions like that. Mr. Stella asked about signage. He would suspect that the neighborhood would be concerned about what signage is up there. Will it be something explicit like “Pain for Sale” or something very non-committal such as “Ink”. Board of Zoning Appeals Meeting Full Page 17 April 20, 2023 Ms. Turkelson replied that staff would look at whether signage, and what type of signage, is permissible. They would likely have non-conforming rights to reface the sign that they have. However, staff must be content neutral. They do not have the ability to limit the content of their sign. Ms. Rabaut recalled from testimony that because the business is by appointment only he wasn’t interested in signage that would attract clients off the street. Her impression was that the sign was going to be tasteful and smaller in scale. Mr. Fitz explained that they would likely reface what is there because, unless seeking a variance, there isn’t much else they can do in a residential zone district other than window signage. Mr. Zeiser asked if the by appointment only aspect of the business also poses an enforcement challenge. Ms. Turkelson replied that it could. What it should do is limit the number of people that are congregating or waiting. She doesn’t find that to be as challenging to enforce, especially if it is daytime hours. Ms. Rabaut didn’t want to overlook the fact that there were 21 signatures in support from residents of the area. Ms. Turkelson suggested, with respect to the motion, that it may be relevant when considering detriment to note that this is a major street that the business would be fronting and there is a bike route, parking, and public transit within relatively close proximity. Relative to the Master Plan, point 5, the reuse of existing structures is encouraged. Mr. Lewis amended the motion to include: Point 3 - The business would be fronting on a major street with a bike route, parking, and public transit within relatively close proximity. Point 5 - The Master Plan encourages the reuse of existing structures. Supported by: Ms. Montgomery. Ms. Rabaut wished to restate the conditions of approval:  Per testimony  That transparency be provided on Edgewood, with review and approval by the Planning Director  Hours of operation Sunday through Thursday, 8 a.m. to 6 p.m., and Friday and Saturday, 8 a.m. to 8 p.m.  No dumpster is required  3 parking spaces are to be provided on site  The business shall operate by appointment only  Lighting shall be provided per the LUDS standards Mr. Lewis and Ms. Montgomery confirmed their acceptance of the stated conditions of approval. Board of Zoning Appeals Meeting Full Page 18 April 20, 2023 Mr. Lewis wished to address point 3 further. The previous use was a liquor store. He struggles to see how a low traffic tattoo parlor is going to be substantially more detrimental to the neighborhood than that previous use was. Mr. Zeiser expressed that he understands that the Master Plan supports the reuse of existing buildings. He asked if it is reuse of buildings based on services to that neighborhood. This isn’t necessarily helping to rejuvenate that neighborhood. We can say the liquor store wasn’t good for the neighborhood but there was still a convenience store aspect to it and residents of the neighborhood could get some things they needed. When considering the Master Plan, should they consider that as well. Yes, there is a reuse of a building but is it the proper use of the building wanted for that neighborhood. Ms. Turkelson advised that that is definitely part of the Board’s review. The difficulty with the Master Plan and Zoning Ordinance currently is very clearly that it doesn’t explicitly support commercial uses in a residential zone district, which is why it is a Use variance. It is a more challenging process. When considering the Master Plan, some ways that a non-residential use could be supported is by looking at the existing structure understanding that it was built for non- residential purposes, that reuse of it as a residential structure is a hardship, and the fact that the property is a corner property and historically, pre-dating zoning, is where non-residential uses in a residential neighborhood would be. It is also fronting on a major street. It is not embedded further into the neighborhood and has good access to public services, such as transit and bike lanes. When working on the Master Plan in 2002 there was a strong sentiment that people liked their neighborhood the way it was and the way it looked; the built form. That, in part, led to the objective to encourage reuse of the existing buildings that are in the community. There is also some language in there, not specific to this area, about allowing for small scale, non-residential uses that talk about providing a fine grain mix of housing, shopping, jobs, and recreational opportunities. That is in the Great Neighborhoods Chapter of the Master Plan. The fact that this is approximately a 2,000 sq. ft. footprint and not a 25,000 sq. ft. footprint commercial use is relevant when talking about having small scale, non-residential uses in residential areas or in close proximity to residential neighborhoods. Mr. Lewis noted that the applicant came with a specific request for a tattoo parlor. What he feels they are talking about is a personal service use in a residential neighborhood. It could be a hair salon or some other use. He doesn’t feel they would have the opposition if it were a hair salon. The opposition is specific to this use. How is the Board supposed to look at the push back on that specific use. He feels they are considering something broader than the specific requested use; that a commercial structure should have a commercial business and businesses that fit in a 2,000 sq. ft. space are smaller personal service type uses. It just happens that this is a tattoo parlor. Ms. Turkelson advised that it is relevant, which is why it is a different use category because the impacts of the use categories are different. In this case, it is up to the determination of the Board as to whether or not this particular use, compared to another use, is compatible and that is based on who it is servicing. This isn’t a business that is open to the public that services the neighborhood it is in. The previous use could make that argument much more effectively. A hair salon use could be arguable because there are hair salons where one might be more inclined to just walk in for a haircut whereas others operate by appointment only and caters to different customers. It is relevant for the Board to consider but Ms. Turkelson understands how it is Board of Zoning Appeals Meeting Full Page 19 April 20, 2023 difficult. The neighborhood is not this business’s target customer base so, if the Board finds that to be inappropriate, it is relevant for the Board to consider and they could find it to be unacceptable compared to a business that were more traditionally catering to the neighborhood. Ms. Turkelson recommended focusing on the intensity of the use and how impactful it is to an adjacent residential zone district; how many customers, the number of employees, frequency of customer turn over, etc. A hair salon has shorter visit times than most tattoo parlors. When a tattoo parlor customer comes in they are committed and there for an extended period of time. For the most part, a hair salon has a greater level of turn over than you would likely see at a tattoo parlor. Is there an anticipation that the operational plan of this application will have a negative impact on the adjacent neighbors. Mr. Hoeker advised that it is the specific use that has been requested that is under consideration in terms of how it was defined by the applicant and that specific/proposed use is compared to the standards and not another hypothetical use. The question was called. YEAS: 2 (Lewis & Montgomery). NAYS: 6. MOTION FAILED. RESULT: FAILED [2 TO 6] MOVER: James Lewis SECONDER: Traci Montgomery YEAS: Traci Montgomery, James Lewis NAYS: Rabaut, Zeiser, Swanson, Schaffer, Kilpatrick, Stella ABSENT: Bruce Anthony McCoy, Jeffrey King GENERAL PUBLIC COMMENT Mr. Easterday asked if he were to reduce the number of booths to 3 whether that would make a difference. He also asked if the building was converted to a two-family residential structure if that would likely get approved. Mr. Easterday was directed to speak with staff. V. Discussion  Ms. Rabaut thanked staff for the training session last month. She found it helpful and it was nice to have other communities participate.  Ms. Rabaut expressed that she would like to go back to the practice of doing inspections. Mr. Fitz related that they have resumed that practice.  There was a new Board member appointed recently.  Ms. Turkelson provided a brief Master Plan update. VI. Adjournment The meeting was closed at 3:05 PM