Zoning Board of Appeals

STERLING HEIGHTS ZONING BOARD OF APPEALS REGULAR MEETING CITY HALL January 25, 2018 LOCATION: City Council Chambers, 40555 Utica Road, Sterling Heights, MI SUBJECT: Minutes of the Regular Meeting of the Zoning Board of Appeals held January 25, 2018. Mr. Graef called the meeting to order at 7:00 p.m. Members present at roll call: Derek D’Angelo, Dale Deming, David Graef, Junina Jean, Stefano Militello, Pashko Ujkic, and Ray Washburn Members absent at roll call: None Also in attendance: Chris McLeod, City Planner Don DeNault, City Attorney APPROVAL OF AGENDA Motion by Mr. Militello, supported by Mr. Ujkic, to APPROVE the Agenda. Ayes: Militello, Ujkic, Washburn, D’Angelo, Deming, Graef, Jean Nays: None Absent: None Motion carried. CORRESPONDENCE Michigan Association of Planning Magazine Email regarding case PZBA17-0026 – Danny Nguyen (Ocean Spa & Nails) Requesting board approval for a variance which if granted would allow for a body art facility and a massage establishment within a shopping center that is not 100,000 square feet, is within one thousand (1,000) feet of a place of worship, school, playground or park and five hundred (500) feet of a residential district. Current Zoning: C-2 – Planned Comparison Business District Location: Northeast corner of Fifteen Mile and Dodge Park Property address: 35264 Dodge Park Road Mr. Graef asked Mr. McLeod to give an overview of the case. Mr. McLeod displayed site plans and gave an overview stating the main use of the tenant space is for hair and nail services as well as a cosmetology school. That portion of the use is already approved and in operation. The applicant is now proposing to add a single micro blading room and massage/facial room to the existing Ocean Spa and Nail use. The noted hours of operation for the use is Monday through Saturday 9:00 a.m. to 7:00 p.m., being closed on Sundays. Mr. Graef asked the petitioner to come forward to the podium. Danny Nguyen, owner of Ocean Spa, came to the podium. He stated he would like to expand his business to include microblading because his daughter specializes in it and would also like to provide relaxation massages. Mr. Graef asked if Mr. Nguyen had all the proper licensing. Mr. Nguyen stated yes, he has licensing for the services. Mr. D’Angelo asked Mr. McLeod if there have been any negative reports regarding the applicant. Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 2 Mr. McLeod stated there had not been any negative reports regarding the application for a variance. There was a notice given to the applicant because they were providing services not permissible in the location. He explained Mr. Nguyen immediately came in and applied for the variances. Mr. D’Angelo asked Mr. Nguyen when he opened if he had experience running this type of business before. Mr. Nguyen stated they have been open just over two months. He explained he, his wife, and daughter had a nail salon business in Waterford for 15 years. He stated even his extended family is involved in the nail salon business. He said they wanted to have an upscale nail salon with more of a day spa feel. Mr. Graef asked for any further questions from the Board. Being none, he asked for public participation. Being none, he asked the Board for any further comments or a motion. Motion by Mr. Ujkic, supported by Mr. Militello, in the case of PZBA17-0026 Ocean Spa – Danny Nguyen, 35264 Dodge Park, I move to APPROVE each of the following variances requested by the petitioner: 1. A variance of 10,500 square feet to the required shopping center size of 100,000 square feet; 2. A variance of two hundred and ten (210) feet to the required five hundred (500) foot setback of a body art facility to residential property; 3. A variance of 10,500 square feet to the required shopping center size of 100,000 square feet for a massage establishment; and 4. A variance of two hundred and ten (210) feet to the required five hundred (500) foot setback of a massage establishment to residential property For the following reasons: 1. All of the requirements in the Zoning Ordinance for approving a non-use variance have been established in the record, and granting the variance will observe the spirit of the Zoning Ordinance. For Variance No. 1: 2. Decreasing the required shopping center size in this particular application will not be contrary to the public health, safety, or welfare, or the spirit and intent of the Zoning Ordinance, because the shopping center is of a significant size (89,500 square feet) and the use is not a primary use of the tenant space. 3. The decrease in the required shopping center size will not likely significantly depress the value of nearby properties. 4. No useful purpose would be served by strict application of this size requirement in the Zoning Ordinance. 5. The decrease in the required shopping center size will not have an immediate adverse impact on any adjoining property. 6. The tenant space is the western most unit, closest to Dodge Park For Variance No. 2: 7. Decreasing the required setback in this particular application will not be contrary to the public health, safety, or welfare, or the spirit and intent of the Zoning Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 3 Ordinance, because the proposed body art facility is an ancillary use of the tenant space. 8. The decrease in the required setback will not likely significantly depress the value of nearby properties. 9. No useful purpose would be served by strict application of this setback requirement in the Zoning Ordinance. 10. The decrease in the required setback area will not have an adverse impact on any adjoining property. 11. The site will still have a setback of approximately two hundred and ninety (290) feet. For Variance No. 3: 12. Decreasing the required shopping center size in this particular application will not be contrary to the public health, safety, or welfare, or the spirit and intent of the Zoning Ordinance, because the shopping center is of a significant size (89,500 square feet) and the use of the site for a massage establishment is not a primary use of the tenant space. 13. The decrease in the required shopping center size will not likely significantly depress the value of nearby properties. 14. No useful purpose would be served by strict application of this size requirement in the Zoning Ordinance. 15. The decrease in the required shopping center size will not have an immediate adverse impact on any adjoining property. For Variance No. 4: 16. Decreasing the required setback in this particular application will not be contrary to the public health, safety, or welfare, or the spirit and intent of the Zoning Ordinance, because the proposed body art facility is an ancillary use of the tenant space. 17. The decrease in the required setback will not likely significantly depress the value of nearby properties. 18. No useful purpose would be served by strict application of this setback requirement in the Zoning Ordinance. 19. The decrease in the required setback area will not have an adverse impact on any adjoining property. 20. The site will still have a setback of approximately two hundred and ninety (290) feet. This motion includes the following conditions: 1. First, the Conditions of Approval, which were signed by the petitioner and submitted with the application, must be followed. Failure to follow these requirements will be grounds to revoke the variance. 2. Second, the petitioner must comply with the following conditions requested by the Office of Planning: Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 4 a. The variance shall expire, without the need for any action by this Board, if the appropriate approvals are not sought and obtained within one (1) year. b. The approval of this variance shall not be a rationale for any future variance requests. c. Any additional variance requests may be grounds for the revocation or revision of the current variance application. d. The proper body art licenses be obtained from the Department of Community Health as required by state law. e. The proper body art permit be applied for and obtained by the City Clerk’s Office. f. The use remains open to the public during all hours of operation. g. The microblading use shall not expand or exceed the scope defined by the petitioner and presented to the Board without returning to the Board for consideration. h. Any violation of the terms and conditions of the Zoning Board of Appeals decision or of any requirements of the State’s or City’s licensing requirements could be grounds for the revocation of the use variances. i. All appropriate from the state, county, and local government must be obtained prior to performing any massage or microblading services. Mr. Graef asked for any discussion on the motion. Mr. Washburn suggested adding condition “i” to the motion. Motion by Mr. Ujkic, supported by Mr. Militello, to AMEND motion by adding condition “i”. Mr. Graef asked for any further discussion on the motion. Being none, he called for a roll call vote. Ayes: Ujkic, Militello, Washburn, D’Angelo, Deming, Graef, Jean Nays: None Absent: None Motion carried. PZBA17-0029 – Cueter-Ryan Properties Requesting board approval for a use variance that if approved would allow for an expansion of a single family residential development to allow additional single family residential units. Current Zoning: C-1 Local Convenience Business District and RM-2 Multiple Family Low Rise District Location: West side of Ryan Road, South of Ryan Road in Section 06 Property address: 3800 and 3900 Dobry Drive and 44697 Ryan Road Mr. Graef asked Mr. McLeod to give an overview of the case. Mr. McLeod displayed site plans and gave an overview stating the applicant is requesting a use variance which if granted would allow an additional land area that is approximately 110 feet in depth and 300 feet in width to be added to the existing single family residential development for the purposes of developing an additional 5 single family residential lots ultimately totaling 58 residential lots. Mr. Graef asked the petitioner to come forward to the podium. Walter Cueter came to the podium. He stated the small parcel is not part of the project and adding it in will complete the subdivision. Mr. Graef asked the Board for any questions. There was discussion between Mr. Washburn, Mr. McLeod, and Mr. Cueter which addressed that if a commercial property were developed abutting the residential, the commercial property would be responsible for putting up the barrier wall. Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 5 Mr. Graef asked for any further questions from the Board. Being none, he asked for public participation. Being none, he asked the Board for any questions or a motion. Motion by Mr. D’Angelo, supported by Mr. Militello, in the case of PZBA17-0029, Cueter Ryan Properties, 44697 Ryan and 3800 and 3900 Dobry Road, I move to APPROVE the requested use variance to allow for additional single family residential homes sites within the C-1 Local Convenience Business District and RM-2 Multiple Family Residential Low-Rise District for the following reasons: 1. The use as described within the application and by the applicant during the public hearing is for additional single family residential home sites within an approved residential development, that has previously received a use variance from the Zoning Board of Appeals, and the change to the residential dwelling type will not be of a nature that will be a detriment to the abutting residences. 2. The plight is due to unique circumstances peculiar to the property and not to general neighborhood conditions. 3. The use to be authorized by the variance will not alter the essential character of the area and locality. 4. The problem is not self-created. 5. The spirit of the Zoning Ordinance will be observed, public safety and welfare secured, and substantial justice done. 6. There is compliance with the Zoning Ordinance standards for discretionary decisions. 7. The use variance would essentially “square off” the development and provide for a more logical break in the use lines and property lines, and would eliminate the potential intrusion of the commercial property into the residential development. This motion includes the following conditions: 1. First, the Conditions of Approval, which were signed by the petitioner and submitted with the application, must be followed. Failure to follow these requirements will be grounds to revoke the variance. 2. Second, the petitioner must comply with the following conditions requested by the Office of Planning: a. The modification to the use variance shall expire, without the need for any action by this Board, if the appropriate approvals are not sought and obtained within one (1) year. b. The approval of this use variance shall not be a rationale for any future variance requests. c. Any additional variance requests may be grounds for the revocation or revision of this use variance. d. That the home sites are developed consistent with the previous approval PZBA15-0009. Mr. Graef asked for any questions on the motion. Mr. McLeod asked that condition “d” be added. Motion by Mr. D’Angelo, supported by Mr. Militello, to AMEND by addition condition “d”. Mr. Graef asked for any further questions on the motion. Being none, he called for a roll call vote. Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 6 Ayes: D’Angelo, Militello, Deming, Graef, Jean, Ujkic, Washburn Nays: None Absent: None Motion carried. APPROVAL OF MINUTES Motion by Mr. Ujkic, supported by Mr. Deming, to APPROVE approval of the minutes for the December 21, 2017 meeting. Ayes: Ujkic, Deming, Washburn, D’Angelo, Graef, Jean, Militello Nays: None Absent: None Abstained: None Motion carried. NEW BUSINESS Amend Zoning Board of Appeals 2018 Meeting Dates Mr. McLeod stated the July ZBA meeting date needed to be moved due to a conflict with Sterling Fest. Motion by Mr. Militello, supported by Mr. Ujkic, to APPROVE Amendment of 2018 Zoning Board of Appeals Meeting Dates; new date is July 19, 2018. Ayes: Militello, Ujkic, Washburn, D’Angelo, Deming, Graef, Jean Nays: None Absent: None Motion carried. OLD BUSINESS PZBA17-0021 – Jeffrey Schultz Requesting board approval for a use variance to permit additional traffic to come to a residence as part of a home occupation within a One Family Residential District. Current Zoning: R-60 One Family Residential District Location: Southwest side of Lesure Drive, south of 17 Mile Road, west of Dodge Park Road in Section 22 Property address: 11104 Lesure Drive Mr. Graef asked Mr. McLeod to give an overview of the case. Mr. McLeod gave an overview stating the applicant is requesting a use variance to allow for an accessory home occupation that will generate traffic. Home occupations are permissible in the City’s Residential Zoning Districts as a permissible use, however, the zoning ordinance does not permit any traffic to be generated that is not typical for a single-family residence. In addition to the engineering consulting services (Design Expert LLC), the applicant has also obtained a Federal Firearms License to be a dealer at this location. This license allows for the sale of rifles, shotguns, pistols, revolvers, gunsmith activities, and National Firearms Act (NFA) weapons. Mr. Graef asked the petitioner to come forward to the podium. Jeffrey Shultz, owner of Design Experts, LLC, came to the podium. He stated the main purpose of the request is to allow traffic to the house. He also stated no inventory would be kept on site except for small internet sales. For any kind of transfers, it would be a single sale and by appointment only. Mr. Washburn asked if there would be any fabrication at the home for the design business and how many people would be coming home for the engineering business. Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 7 Mr. Shultz stated it is through a partnership that fabrication could occur but it would be offsite and no fabricating would be done at the home. He also stated typically he would not have anyone coming to the home for engineering consulting because that usually takes place at the customer’s place of business. Mr. Washburn asked Mr. Shultz how many guns he would anticipate having on site at one time and does he have storage for the guns. Mr. Shultz stated he was unsure of the number at this time. He also explained he has a 25-firearm gun safe bolted to the floor but as many as 25 guns wouldn’t even fit in there so it would be less than that at any one time. Mr. Washburn asked if he had an alarm system installed at the home. He also asked what type of guns will be sold and is he limited to the people he can sell to. Mr. Shultz stated he does not have an alarm system at this time. He can sell many types of guns but it will mostly be handguns. He can only sell to those that have passed the NISC background check. He stated everything would be through the ATF regulations. Mr. Washburn asked how internet sales work. He also asked if Mr. Shultz would be selling ammunition and if it would be stored at the home. Mr. Shultz stated he could only ship a gun to another firearms dealer. He explained he does not plan to sell ammunition due to storage space and it would not be cost effective. Mr. Washburn asked Mr. Shultz if he was licensed and if there was any licensing needed through the state or local government. He also asked if he has to notify the local police department that he will be selling guns. Mr. Shultz stated he received his Federal license in September of last year and that is the only license that is required. He also explained when you send a copy of the license to the ATF, you also have to send a copy to the chief law enforcement officer. Mr. Deming and Mr. Shultz talked through the process of how the sale or transfer of a gun could be transacted. Mr. D’Angelo asked Mr. Shultz to explain what he had to go through to get his license to sell guns, about what type of alarm system he was going to install, and why this has to be done at a residence. Mr. Schultz stated to obtain a license, there is an extensive background check done and they make sure the business is being done in the correct zoned area. He also stated this is a part-time occupation for him to make extra money and some of the stores do not do transfers they just sell their retail. Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 8 Mr. D’Angelo asked Mr. McLeod how many retail stores there are in Sterling Heights that sell guns. Mr. McLeod stated there are a handful in Sterling Heights. Mr. D’Angelo asked if he was mainly the “middle man” in a transaction and for Mr. Schulz to explain what type of security system he was considering. He also asked if he has informed any of his neighbors that he will have this business. Mr. Shultz stated he hasn’t looked fully into the security systems because if the business isn’t profitable, he won’t proceed with it. At this time, he has not informed any neighbors. Mr. Deming asked if it would be possible not to keep inventory at the home. Mr. Shultz stated if he wasn’t able to keep inventory and found closeout deals, then he couldn’t purchase them and have them to sell. Ms. Jean asked what other certifications he has to be selling firearms and if there is safety training or anything of that nature. Ms. Jean also expressed other concerns regarding safety. Mr. Shultz stated there are no other certifications needed. The federal license is all that is required. He explained the process when getting a license through the ATF. Mr. Washburn asked Mr. Schultz to clarify his internet sales. He also confirmed all guns would have proper locks on them as well as being locked up. Mr. D’Angelo asked Mr. Schultz if they put a requirement in the motion to only have residents of the home present when a transaction would occur, if he would agree with that. Mr. Schultz stated yes, he would agree. Mr. Deming asked if the additional traffic to the home is also for the engineering business. Mr. Schultz stated because of the cost involved in applying for the use variance, he decided to include his engineering business also. He does not anticipate any traffic from that business. Mr. Deming then suggested maybe Mr. Schultz should ask for a postponement so he could split the variance into two separate ones. Mr. Shultz stated he would like to continue and not postpone. There was discussion regarding whether this home occupation was acceptable. Mr. Ujkic stated that a notice was sent out regarding the variance and asked Mr. Shultz if there were any neighbors that inquired about the notice. He also asked Mr. McLeod if the city has been notified by any residents regarding this case. Mr. Shultz stated one neighbor text his wife but he was not aware it was anything negative. Mr. McLeod stated there were three emails and a phone call from residents. All are against this variance. He also stated previously there were residents which came to the counter in the building department expressing concern and opposing the variance. Mr. Ujkic stated he would like to know what kind of security would be installed, how customers are going to transport the gun from the house to their vehicle, and what amount of transactions would be enough to move the business out of the house. Mr. Shultz explained if he is required to have a security system, he would get one professionally installed. He also explained the gun would have a lock on it, it would be Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 9 in a gun case, and then in some sort of unmarked package. He also would agree to three on site transactions per week. Mr. D’Angelo asked if Mr. Schultz would agree to a video monitoring security system for the home. Mr. Shultz stated a video system would be quite expensive and in turn the business would not be profitable. Mr. Graef asked for any further questions from the Board. Being none, he asked for public participation. Being none, he asked the Board for any further comments or a motion. Motion by Mr. Deming, supported by Ms. Jean, in the case of PZBA17-0021, Design Experts, LLC, Jeffrey Schultz, 11104 Lesure Drive, I move to DENY the requested use variance to allow for a home occupation that permits nonresidential traffic, for the following reasons: 1. No hardship has been established, and any alleged hardships are (or will be) self-created. 2. The applicant has not demonstrated that unique characteristics of the property are causing his plight. 3. Conformity with the zoning regulations would not be unnecessarily burdensome. 4. A use variance permitting nonresidential traffic could create an undesirable precedent and cause significant impact to the City’s residential neighborhoods by significantly increasing the amount of traffic on local/residential streets. 5. The hours proposed by the applicant are those when the most traffic is on the road, the most people are out in the neighborhood, and the most children are at home. 6. The home occupation proposed by the applicant would alter the residential character of the neighborhood by creating a commercial enterprise within a home that involves heavily regulated products that can pose a danger to others. 7. The hours proposed by the applicant are extremely difficult to monitor for compliance with the conditions of a variance. 8. Firearm dealerships are traditionally located in very secure commercial settings, isolated from residential dwellings and residential uses, and proper security cannot be ensured in a residential home. Mr. Graef asked the Board for any discussion on the motion. Mr. Washburn asked Mr. DeNault how this case is a use variance. Mr. DeNault stated if a home occupation desires to have additional vehicular traffic to the home, you need a use variance. It is a home occupation beyond the home occupation allowed by ordinance. Mr. Graef asked the Board for any further discussion on the motion. Being none, he called for a roll call vote. Ayes: Deming, Jean, Graef Nays: D’Angelo, Militello, Ujkic, Washburn Absent: None. Motion failed. There was much discussion regarding what the use variance was for. Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 10 Motion by Mr. D’Angelo, supported by Mr. Washburn, in the case of PZBA17-0021, Design Experts, LLC, Jeffrey Schultz, 11104 Lesure Drive, I move to APPROVE the requested use variance to allow for a home occupation that includes nonresidential traffic beyond that which is needed for the dwelling unit for the following reasons: 1. The use as described within the application and by the applicant during the public hearing is for a home occupation that permits nonresidential traffic, but the proposed use variance as described in the application does not significantly alter the use of the site as a dwelling, other than to encourage business visitors, and the change to the intensification of the use of the site will not be of a nature that will be a detriment to the abutting residences. 2. The plight is due to unique circumstances peculiar to the property and not to general neighborhood conditions. 3. The use to be authorized by the variance will not alter the essential character of the area and locality. 4. The problem is not self-created. 5. The spirit of the Zoning Ordinance will be observed, public safety and welfare secured, and substantial justice done. 6. There is compliance with the Zoning Ordinance standards for discretionary decisions. 7. The hours of operation will be limited to 6:00 p.m. and 7:30 p.m. on weekdays and 10:00 a.m. and 5:00 p.m. on weekends, which minimizes any nonresidential traffic and that the use does not exceed one hundred (100) square feet in size. 8. The application would require any person coming to the site for an appointment to park within the existing driveway and not on the street, which therefore will not increase on-street parking. This motion includes the following conditions: 1. First, the Conditions of Approval, which were signed by the petitioner and submitted with the application, must be followed. Failure to follow these requirements will be grounds to revoke the variance. 2. Second, the petitioner must comply with the following conditions requested by the Office of Planning: a. The modification to the use variance shall expire, without the need for any action by this Board, if the appropriate approvals are not sought and obtained within one (1) year. b. The approval of this use variance shall not be a rationale for any future variance requests. c. Any additional variance requests may be grounds for the revocation or revision of this use variance. d. The hours of appointments shall never exceed those outlined in the application, and shall never exceed more than one (1) appointment with one (1) individual at a time, and should the use not comply with this requirement, the use will be re-evaluated by the Zoning Board of Appeals. e. The applicant shall permit inspections by the City’s Police Department to verify storage methods. Additional security measures onsite shall include: Zoning Board of Appeals Regular Meeting of January 25, 2018 Page 11 i. A home security system that is monitored by a third-party provider as discussed with the petitioner and the service provider would need to maintain service as long as this use is taking place at this residence; ii. Storage of FFL products in locked and safes that cannot be moved without the assistance of equipment; 3. Third, the petitioner must comply with the following additional conditions: a. There would be no more than three (3) transactions done at the home per week; b. There would be an inventory of twenty-five (25) or less guns for purposes of those transactions not including the petitioner’s personal firearms; c. There would not be any non-resident, non-family minors on the property during a transaction at the home. Mr. Graef asked for any discussion on the motion. Motion by Mr. D’Angelo, supported by Mr. Washburn to AMEND condition 2.e.i. Mr. Graef asked for any further discussion on the motion. Being none, he called for a roll call vote. Ayes: D’Angelo, Washburn, Deming, Militello, Ujkic Nays: Graef, Jean Absent: None. Motion carried. PUBLIC PARTICIPATION None MOTION TO ADJOURN Motion by Mr. Militello, supported by Ms. Jean, to ADJOURN . Ayes: Militello, Jean, Ujkic, Washburn, D’Angelo, Deming, Graef Nays: None Absent: None Motion Carried Meeting adjourned at 9:24 p.m. Respectfully submitted, David Graef, Chairman Zoning Board of Appeals