Zoning Board of Appeals

STERLING HEIGHTS ZONING BOARD OF APPEALS REGULAR MEETING CITY HALL OCTOBER 23, 2014 LOCATION: City Council Chambers, 40555 Utica Road, Sterling Heights, MI. SUBJECT: Minutes of the Regular Meeting of the Zoning Board of Appeals held October 23, 2014. Mr. Kremhelmer called the meeting to order at 7:00 p.m. Members present at roll call: Derek D’Angelo, David Graef, Bruce Kremhelmer, Stefano Militello, Nick Najjar, Ray Washburn, Aaron Wawrzyniak Members absent at roll call: None Also in attendance: Mike Viazanko, Building Official Don DeNault, City Attorney Renee Bayer, Recording Secretary APPROVAL OF AGENDA Moved by Militello, supported by Najjar, to approve the agenda. Ayes: Militello, Najjar, Washburn, Wawrzyniak, D’Angelo, Graef, Kremhelmer Nays: None Absent: None Motion carried. CORRESPONDENCE There is no correspondence. PZBA14-0020 – Damrath Group, LLC Requesting Board approval for a Use Variance to allow a Self Service Gas Facility in a C-2 (Planned Comparison Business) zoning district – East side of Schoenherr Road between Canal Road and Southcove Drive in Section 1. Property address: 43632-43738 Schoenherr Road See petitioner's drawing for tenant space, dimensions, and building location. Mr. Viazanko explained that the gas facility is proposed for the west parking area of Lakeview Plaza, which is located on the east side of Schoenherr Rd. The area being taken for the proposed use dimensions 145’ x 295’, directly adjacent to Schoenherr Rd and north of Pizza Hut Restaurant. Mr. Viazanko explained that this parcel is zoned C-2 (Planned Comparison Business). The intent of this district is to provide services serving the needs of a broad market area. It is typically larger shopping centers on large parcels of land. C-2 parcels are required to be 8 acres in size, either individually or as multiple contiguous parcels. Kroger is currently undergoing an expansion of their grocery store located on the west side of Schoenherr Road, directly across from this site. Kroger is the anchor tenant on the north side of the center, which was built 12 years ago. Kroger is proposing to add 6474 square feet on the north side of the building, and expand into two adjoining tenant spaces at the south end of Kroger, adding an additional 11,395 square feet. It is important to note that Kroger has closed two stores within the city in the last few years. It is encouraging to see the strength of this location and the need for Kroger to expand their level of service to their customers. Providing the gasoline component is another piece of their expansion plans. Zoning Board of Appeals Minutes Regular Meeting of October 23, 2014 Page 2 As it relates to the required Special Approval Land Use conditions as listed in Section 13.02 F., this proposal can meet them, specifically: F. Gasoline self-service stations, subject to the following: 1. The site for the gasoline self-service station shall have 150 feet of frontage on the principal street serving the station; 2. The site shall contain an area of not less than 21,000 square feet; 3. All buildings shall observe front or street-side setbacks as specified in section 13.04, height and public requirements, plus 15 feet. For purposes of this section, canopies, gasoline pumps and pump islands shall not be considered buildings, but shall observe the setbacks of this article; 4. Curbs, curb cuts, driveway widths and acceleration or deceleration lanes shall meet the requirements of the City of Sterling Heights or other agencies having jurisdiction thereof; 5. In order to facilitate safe pedestrian circulation and safety, no parking or standing of customer vehicles shall be permitted in the area immediately adjacent to any customer entrance or payment window; This proposal indicates 6 pump islands with a 270 sq. ft. kiosk. The petitioner will be required to complete the administrative site plan review process with all appropriate city departments to construct the fuel center. The intent of this requirement recognizes the larger geographic draw that a business of this type may have. The area is in an intense commercial shopping district, located on a major thoroughfare, and this use has no difficulty meeting the locational and parking requirements of the zoning ordinance. Petitioner, John Damrath, 143 Katy Center, Northville, with the Damrath Group stated that the plan meets all the criteria for a fuel center in a C-3 zone, it just so happens that we are in a C-2. There has been a very good reception to the project in terms of there being a need in this area for a fuel center. Kroger customers are looking forward to it and something their customer base has grown to expect. After exploring all the other options in the area, this is the most viable site for it. We are asking for a waiver on this so we can do the project. Mr. Kremhelmer stated that petitioner is requesting a use variance which will require five Ayes on the vote and asked if the board had any questions for the petitioner. Mr. D’Angelo asked why the trash enclosure is nearer Schoenherr road when normally a trash enclosure would be behind the building and not so much in the front. Petitioner stated they explored a lot of different areas for that to be located, and can work with the planner to get it into a location you prefer. Mr. Kremhelmer asked if putting in fuel centers for Kroger is becoming a mandate. Petitioner stated it’s not a mandate. It’s customer driven. It’s become an expectation of the customers. Mr. Kremhelmer asked if there were any other Kroger’s’ in the area that have fuel centers. Mr. Militello stated he was aware of 14 Mile and Schoenherr, the Kroger at 21 Mile and Card, and also 23 Mile and Hayes. Mr. Wawrzyniak stated that with this new gas station going in, it would be eliminating quite a few parking spaces in the complex. Is there a parking count on the existing complex that you are encroaching in on? I see a problem with the cars stacking up Zoning Board of Appeals Minutes Regular Meeting of October 23, 2014 Page 3 there and getting in and out of the actual strip mall complex may be difficult other people. The petitioner stated that the spacing is not such that there is a lane in between. If two cars are in there fueling, there is not a lane in between the cars. They are only single file and not too deep. Basically like a single parking spot for the person fueling. Mr. Wawrzyniak stated that he sees a potential nightmare for people coming in and out of the strip mall. I’m sure the gas station will bring in more business to the strip mall, which is a great thing, but I can see a mix of traffic with cars trying to wait to get gas and could cause a bit of frenzy there. Mr. Militello stated that his office is right by this shopping center and has never seen this parking lot a third filled. Looking at the layout the way it is, I respect what you are saying, but I don’t think it will be an issue because the shopping center is pretty much 50% full and has more than enough parking for what’s in there. Most businesses are a quick in and out. Mr. Kremhelmer asked if there were any traffic studies done in the layout. The petitioner stated not for this one in particular but there has been a lot of experience because this is not the first one Kroger has done. It has additional dispensers to address that situation. They might do four dispensers where this one has six. If you stack too deep you have cars backing up trying to get around and this one is a clean, single file dedicated space. Mr. D’Angelo asked Mr. Viazanko if they were requesting this property to be rezoned to a C-3 based on sign he had seen on the property. Mr. Viazanko said there is no rezoning going on, and that this is a Use Variance. Mr. DeNault, City Attorney, asked petitioner what Kroger’s’ legal interest in the property will be. Are they purchasing or leasing an interest. The petitioner stated that it will be a land division purchase. City Attorney DeNault stated that then there will be a split or division coming in the future then. The petitioner stated that they did verify that it was eligible for a division. City Attorney DeNault questioned when and if that split occurs, where does the use variance go and who does it go with. If the board grants a use variance to this site, it shouldn’t run with both pieces after the split because both pieces won’t want a gas station; only one would be asking for that use. Will this have its own dedicated address or will it be associated with the Kroger address and mail will go across the street. The petitioner stated it will have its own dedicated address. Mr. Kremhelmer asked if it had one now. City Attorney DeNault stated it couldn’t because it hasn’t been split. Petitioner stated they were given 43632 as the new address. Mr. D’Angelo stated that it seemed like the board could make it contingent upon the split. Sometimes purchases have to happen after we give approval. We have been given an address by the petitioner and if anything changes from the facts presented to us tonight, they would have to come back before the board anyway. City Attorney DeNault stated that he can’t see that working. It stays with the current property. If you tried to fasten a motion that made it contingent upon the split and thereafter, it shall become effective and run with the newly split off parcel, then you haven’t granted a use variance to the newly minted parcel because that parcel doesn’t exist right now. You would have to be granting it to the current existing parcel and then Zoning Board of Appeals Minutes Regular Meeting of October 23, 2014 Page 4 somehow condition that on restricting the use variance to extend only as far as the new piece after its boarders are defined. It’s very complicated. Mr. Kremhelmer asked the petitioner when they anticipated the split. The petitioner stated after the closing on the property which should be in the spring. City Attorney DeNault stated that if there is a purchase in progress, are there any documents drafted showing the defined split off piece. The petitioner stated yes and so do the drawings. City Attorney DeNault stated that he thinks this board is going to need the ability to say that the use variance is only granted to a specified area of the property, not the entire parcel. Chris Rodgers, Real Estate Manager for Kroger, 40399 Grand River, Novi, MI., stepped up to say that Kroger’s has a purchase agreement with the property owner, Mike DiCicco, and we have a survey of the property and a survey done of what we would purchase if everything goes through. So we do know by the survey, exactly what we would be buying. The owner/seller has no interest in having the property split if there is no sale to Kroger and Kroger can’t purchase this until we know we have the approval to build the fuel station. As soon as we know we can do the fuel station, we will proceed to close. Mr. Kremhelmer asked if they had the survey information with them. Mr. Militello asked, City Attorney, Mr. DeNault, if the board should ask for a postponement until they present the legal description. City Attorney, Mr. DeNault stated that normally when we hand someone their approved documents at the end of the evening, it has some basic information of where and the parcel involved. Even if we could up with a way of wording it, there is nothing we could hand to them because everything has to be redrafted contingent on where this is going to be. I also can’t figure out what’s going to change this since they don’t have an ownership interest yet. If they are just a future owner, then all we have before us is a request for a use variance on the entire parcel. The petitioner asked if the use variance would carry with it when it split. City Attorney, Mr. DeNault, said he thought not because all of the facts and circumstances presented to the board that went into its consideration, in any case for granting a use variance, have to continue forward as being true and accurate and they would immediately change the minute the property became two. So I would think it would call for another hearing to come back to be sure the zoning board is still comfortable with what was granted for the larger piece now being a smaller piece and only a smaller piece and would probably have to revoke it for the other piece would also have it, too. Mr. D’Angelo stated that it seems that in order for this to go through, the owner of the property wants to see if this is something we would probably approve. If we did approve of the use variance in a C-2, this is the only thing that could happen here. City Attorney, Mr. DeNault, suggested that since we have the new address of 43632, the board could act on “the future property to be known as” for the use variance. If that changes then they would have to come back. Mr. Kremhelmer stated that the worst case scenario is if we grant a variance to that address or to the whole parcel, and once it splits, that variance becomes invalid. All they will have to do is to get a new case # to get a variance for what becomes the gas station. Maybe this will be enough for the owner to move forward. Would that satisfy the petitioner knowing they will have to come back to get another variance for the smaller property since the original variance will be null and void once the property splits. Mr. Rodgers stated that it’s a timing issue. It’s putting the planning before the variance. Zoning Board of Appeals Minutes Regular Meeting of October 23, 2014 Page 5 Mr. Kremhelmer stated that they will be getting their variance for what they are requesting tonight. Mr. Militello stated that the petitioner is saying that they can’t go before planning if he has to come back to us. Mr. Kremhelmer stated that planning is only going to act on this particular variance and plans as presented. When they change the facts, the variance is null and void and they have to come back here again and then go back to planning. City Attorney, Mr. DeNault, stated that if we approved a use variance for a future piece of land that doesn’t yet exist legally, the condition would be it becomes effective upon the split. It would be up to the petitioner to make sure that nothing changes after tonight, or else he would have to appear before the Board again. Mr. Militello asked if it would be easier if we postponed and had the property owner here . Mr. DeNault, City Attorney, stated he doesn’t think it would change much. The petitioner doesn’t seem to want to come here with the split in place and they have a comfort level that there is a legal description in place and that they have a gentleman’s agreement now and they are going to close on that agreement in the spring. They just need to smooth out the edges. Mr. Militello stated what if the Planning Commission doesn’t like the way it’s laid out and want a change made. City Attorney, Mr. DeNault stated that’s their discretion. Mr. Washburn we can let the petitioner know how we would vote. Once the closing is done, bring it back before us. City Attorney, Mr. DeNault, stated that he couldn’t let these gentlemen leave with that sort of an understanding. The board could change before these gentleman come back since the closing is in spring. Mr. Rodgers stated that the closing can’t happen until they have the variance and have the Planning Commission approval. We need full city approval. As soon as we can get those approvals, we would have to see where we are at, as far as final costs. The real key here for timing is city approvals in order to close sooner. We do have a signed purchase agreement that states a certain period of time of within which we can do our due diligence to get our city approvals. Mr. DeNault, City Attorney, asked if the petitioner would give the board a copy of the purchase agreement for the legal description, the boundaries being discussed and they would know for sure you have a viable interest because it will show the contingency of city approval. We don’t need the purchase price or business secrets, it will be very helpful for the Planning Commission, too. Mr. Kremhelmer opened the public hearing. Joel Casey, 14154 Kerner, Sterling Heights is opposed to this variance. I think this gas station will be detrimental to anyone wanting to move into this strip mall, and concerned with traffic. Mr. Washburn let Mr. Casey know that a copy of the site plan was on the table for him to view. Mr. Kremhelmer closed the public hearing. Motion by Washburn, In the case of PZBA14-0020, John Damrath, Damrath Group LLC, I move to DENY a use variance to allow a self service gasoline facility in a C-2 (Planned Comparison Business) district for the following reasons: Zoning Board of Appeals Minutes Regular Meeting of October 23, 2014 Page 6 1) Strict compliance would not unreasonably prevent the owner from using the property for a permitted purpose; 2) There are no unique circumstances of the property that would render conformity unnecessarily burdensome. Motion failed for lack of support. Motion by Militello, supported by Najjar, In the case of PZBA14-0020, John Damrath, Damrath Group LLC, I move to POSTPONE the request to the next regular meeting so that the petitioner may provide additional information to the Board. Mr. Kremhelmer asked if there was any discussion on the postponement. City Attorney, Mr. DeNault, asked if there was any directive that the motion maker wanted the petitioners to bring back with them. Mr. Militello stated he wanted the purchase agreement, legal description, survey, and possibly the owner. Mr. D’Angelo asked Mr. DeNault, City Attorney, would it help to have a copy of a purchase agreement? City Attorney, Mr. DeNault, stated that he is comfortable right now that if they could articulate the exact parcel that the use variance would take effect and run with the land, yes it would change things because right now, we are not able to do that. The use variance sought by the current property would be restricted to the boundaries of the proposed future property, whatever it may be called and however it may be split in the future. It would have to be worded right. I’m confident that if we do it that way, we are keeping it with the parcel they are asking it to be on and it will not remain with the remainder of the larger parcel. It would take effect upon the split. Once the split occurs then the use variance takes effect and it’s limited by our conditions of this identifiable piece. Mr. D’Angelo asked petitioners if they had this with them tonight. The petitioner stated they do have a metes and bounds legal description from a licensed surveyor in the state of Michigan. Mr. D’Angelo asked Mr. DeNault if that was sufficient or are you looking for more than that. Mr. DeNault, City Attorney answered that if the board wants to move forward with that description and hope it doesn’t change, it’s up to the board to discuss. Mr. Kremhelmer asked the motion maker, Mr. Militello, if he would like to see that during the discussion period. Mr. Militello stated that he would like to see all the documents I asked for to make an educated decision. I would like to have the documents before the next meeting. Kremhelmer stated that the motion maker has asked for certain documents over and above the legal description. That is what is on the table and that is what we are discussing now. Is there any more discussion on the motion? City Attorney, Mr. DeNault, wanted the petitioners to understand that this is not an order from the board that they have to comply with. What the motion maker is saying is that these are things he would like to see at the next meeting and to do that they would have to be in advance so it can be put into the board members packet. If these are things you can’t bring with you, it doesn’t mean he will deny the motion. They are just things Mr. Militello would like to see. Zoning Board of Appeals Minutes Regular Meeting of October 23, 2014 Page 7 Mr. Washburn stated that he would also like to see as much information that they can present. This will give the petitioner the opportunity to sit down with the representative of the city and city attorneys’ office to come up with something that could be approved. Mr. Kremhelmer asked for a roll call on the motion to postpone. Ayes: Militello, Najjar, Washburn, Wawrzyniak, Graef, Kremhelmer Nays: D’Angelo Absent: None Motion Carried. ELECTION OF OFFICERS Mr. Kremhelmer stated that there are three offices available, Chair, Vice-Chair and Secretary. Nominations for the chair are open. Mr. D’Angelo nominated Mr. Bruce Kremhelmer for the chair, seconded by Mr. Militello. Mr. Kremhelmer accepted the nomination. There are no more nominations. Mr. Washburn moved to close the nominations by appointment of acclamation. Ayes: Washburn, Wawrzyniak, D’Angelo, Graef, Kremhelmer, Militello, Najjar Nays: None Absent: None Motion carried. Nominations for Vice-Chair are open. Mr. Najjar nominated Mr. Washburn for Vice-Chair. Mr. Washburn declined the nomination. Mr. Kremhelmer nominated Mr. D’Angelo for Vice-President, supported by Mr. Militello. Mr. D’Angelo accepted the nomination. There are no more nominations. Mr. Washburn moved to close the nominations by appointment of acclamation. Ayes: Washburn, Wawrzyniak, D’Angelo, Graef, Kremhelmer, Militello, Najjar Nays: None Absent: None Motion carried. Nominations for Secretary are now open. Mr. Najjar nominated Mr. Graef for Secretary, supported by Mr. Wawrzyniak Mr. Graef accepted the nomination. There are no more nominations. Mr. Militello moved to close the nominations by appointment of acclamation. Ayes: Militello, Najjar, Washburn, Wawrzyniak, D’Angelo, Graef, Kremhelmer Nays: None Absent: None Motion carried. Zoning Board of Appeals Minutes Regular Meeting of October 23, 2014 Page 8 APPROVAL OF MINUTES – AUGUST 28, 2014 Mr. Wawrzyniak stated that the minutes should have showed him as abstained since the meeting of August 28, 2014 was his first meeting. Motion to amend the August 28, 2014 minutes by Militello, supported by Najjar to amend the minutes. Ayes: Militello, Najjar, Wawrzyniak, D’Angelo, Graef, Kremhelmer Nays: None Abstain: Washburn Absent: None Motion Carried. NEW BUSINESS There was no New Business. OLD BUSINESS There was no Old Business. PUBLIC PARTICIPATION There was no Public Participation. ADJOURNMENT Moved by Militello, support by Graef, to adjourn at 7:53 p.m. Ayes: Militello, Graef, Kremhelmer, Najjar, Washburn, Wawrzyniak, D’Angelo Nays: None Absent: None Motion Carried. The meeting adjourned at 7:53 p.m. Respectfully submitted, Bruce Kremhelmer, Chairman Zoning Board of Appeals