Zoning Board of Appeals

MANISTEE CITY ZONING BOARD OF APPEALS Meeting of December 15, 2021 7 p.m. - Council Chambers, City Hall, 70 Maple Street, Manistee, Michigan AGENDA I CALL TO ORDER II PLEDGE OF ALLIGIENCE III ROLL CALL IV APPROVAL OF AGENDA At this time the Zoning Board of Appeals can take action to approve the December 15, 2021, Agenda. V APPROVAL OF MINUTES At this time Zoning Board of Appeals can take action to approve the February 18, 2021, meeting Minutes. (Pre-approved by email vote) VI PUBLIC HEARING Request for interpretation of Accessory Use – parcel # 51-51-448-701-20, 21 Cypress St. VII BUSINESS SESSION: Action on Pending Cases • Parcel # 51-51-448-701-20 o Act on interpretation of Accessory Use at 21 Cypress St. • Set 2022 organizational meeting date Old Business None VIII PUBLIC COMMENTS AND COMMUNICATIONS At this time the Chair will ask if there are any public comments. IX ADJOURNMENT 1 Zoning Board of Appeals Zachary Sompels Manistee County Planner 12/7/2021 395 3rd St. Manistee, MI 49660 City of Manistee Zoning Board of Appeals Members 231.723.6041 planning@manisteecountymi.gov 70 Maple Street www.manisteemi.gov Manistee, MI 49960 Dear ZBA members, Background: A request was received for an interpretation of Accessory Use. Union Bag & Barrel, Inc., represented by Mr. Spaulding, has applied for both a Special Use Permit and a Commercial Land Use Permit for an Eating and Drinking Establishment with a Drive Through Establishment at 21 Cypress St. Each of the permit applications have been denied. While a Drive Through Establishment is not listed as a permitted use or a special use in the Peninsula District, Mr. Spaulding argues that it is an accessory use and is therefore permitted. The Planning Department argues that 1. The use is not accessory, and 2. Not an allowable use in the district. A detailed memo of the Planning Department’s view is outlined below, followed by Mr. Spaulding’s view. At the end of this memo is a clip from the Zoning Ordinance that defines Accessory Uses. Supplemental material is provided later in this packet concerning possible negative impacts on the surrounding parcels regarding public health and safety, the potential of creating a Spot Zone, and the City Attorney’s thoughts on this matter. Staff View: Section 516 Accessory Uses Subsection B. Subsubsection 1. A use may be regarded as incidental or insubstantial if the viability of the principal use is not dependent in any significant way on the accessory use. In a May 25, 2021, email in which Mr. Spaulding stated “Please advise whether SUP, variance, or rezoning is the suggested way to deal with the drive thru use. This project is dead without it.” If the project is dead without this use, it is not an Accessory Use by the definition in the Interpretation of Accessory Uses provided in the Zoning Ordinance. 1|Page Section 516 Accessory Uses Subsection A. …Uses may be considered accessory to the principal use regardless of whether the accessory is separately identified in this ordinance as permitted or special use. The Planning Department interprets the above section of the ordinance to mean that while an accessory use may be considered an accessory use whether it is separately identified in this ordinance as permitted or special use, it still must be allowable in the district. Because a Drive-Thru Establishment is allowable as a Special Use in the C-1, C-2, and C-3 Districts, these are the only places it could be considered an accessory use. The Peninsula District explicitly does not allow for Drive Through Establishments, therefore does is not allowable as an Accessory Use or otherwise. While this request is not a variance, the Planning Department would like to point out to the members of the Zoning Board of Appeals Section 2507 Duties and Powers subsection C. Variances subsubsection 1. Basic Conditions. “The board shall find that a variance request meets all of the following conditions. Subsubsubsection b. The requested variance shall not permit the establishment within a district of any use which is not permitted by right within that zone district, or any use or dimensional variance for which a special land use permit is required.” This portion of the Zoning Ordinance clearly indicates that the intent of the Zoning Ordinance does not allow for uses in Zoning Districts that are not clearly defined. Mr. Spaulding’s View: 516B (1) 1. A use may be regarded as incidental or insubstantial if the viability of the principal use is not dependent in any significant way on the accessory use The principal use includes many products and services that will not be available at the window. The window is a secondary, supplemental and incidental method of delivery of only select products. It is not the primary method of product delivery to customers. If it were the sole means of product delivery, the principal use would be dependent on the window. This is simply not the case here. 516B (2) 2. To be "commonly associated" with a principal use it is not necessary for an accessory use to be connected with such principal use more times than not, but only that the association of such accessory use with such principal use takes place with sufficient frequency that there is common acceptance of their relatedness. Is there any argument that casual eating and drinking establishments routinely and commonly have drive thru windows? It is not even necessary for it to be illustrated to meet the threshold of this subsection. There are many within a mile or two. 516B (3) 3. An accessory use shall not generate any effects on neighboring properties, including, but not limited to, noise, parking, traffic, glare, or dust, greater than or more burdensome than such impacts from the main use on the property. The ordinance requirements that address all of these factors are already covered by the site plan proposal. Will there be *additional* burden beyond that already permitted by the ordinance that are caused by inclusion of a drive thru window? That is conjecture at best. For each customer served at the window, there is one less customer served across the counter. The end result is a wash as to burden and demand. The thruput of the business is fixed. 2|Page Whether the customers are served across a counter or out a window, the burden will be comparable between the methods of product delivery. The thruput of this business is limited by the ability of the staff and the capacity of the facility to deliver the product to the customer, regardless of the method of delivery. Only so many sandwiches can be produced per hour. Whether they are delivered over the counter, on a plate for onsite consumption or handed out a window to a pedestrian or a vehicle ... the amount of product that can be generated is static. It is an extension of that calculation that general traffic is similarly a static factor. You suggested that the business could have a walk-up window, but not a drive thru one. What is the difference? It in an exercise in semantics to split hairs over whether there is any significant difference in traffic from one over the other. There is little to no pedestrian traffic in this area. Assuming that 99% of the customers arrive by automobile, the difference in traffic and other factors between the various methods of product delivery will be negligible. The addition of the drive thru window is merely a convenience for the customer. It d�es not increase the thruput of the facility, which is fixed by staffing and equipping. Section 2507 Duties and Powers subsection B of the City of Manistee Zoning Ordinance states that the Zoning Board of Appeals shall have to power to: 1. Interpret, upon request, the provisions of this Ordinance in such a way as to carry out the intent and purpose of the Ordinance. 2. Determine the precise location of the boundary lines between zoning districts. 3. Classify a use which is not specifically mentioned as part of the use regulations of any zoning district, except as provided herein, so that it conforms to a comparable permitted or prohibited use, in accordance with the purpose and intent of each district. With these duties and powers, the Zoning Board of Appeals may make the following determinations: • Agree with the Zoning Administrator in their interpretation of Accessory Use. • Agree with the applicant in their interpretation of Accessory Use. • Provide their own interpretation of Accessory Use that carries out the intent and purpose of the ordinance. • Table the decision until further information is provided. Please reach out if you have any questions. Sincerely, Zachary Sompels Manistee County Planner City of Manistee Zoning Administrator 3|Page 4|Page