MINUTES OF THE REGULAR MEETING OF THE GEORGETOWN
CHARTER TOWNSHIP ZONING BOARD OF APPEALS
HELD FEBRUARY 22, 2006
The meeting was called to order at 7:30 p.m. by
Chairman Daniel Lennington.
Members Present: Daniel
Lennington (chairman), John Fanthorpe, Greg Honderd, Joyce
Weise and Carl DeVree
Members Absent: none
Others Present: Mannette
Minier, Secretary and Zoning Administrator, and the applicants
#060222-01 - Approval of the
minutes
The minutes of the regular meeting held on January 25, 2006 meeting were presented.
Moved by John Fanthorpe,
seconded by Joyce Weise, to approve the minutes of the regular meetings held on
January 25, 2006, as presented.
MOTION CARRIED.
#060222-02 - Election of Officers
Moved by Greg Honderd, seconded by Carl DeVree, to
elect Dan Lennington as chairman, John Fanthorpe as vice-chairman, and Joyce
Weise as secretary.
MOTION CARRIED.
#060222-03 - Adoption of Policy
ZBA 2006-01 Meeting Procedures
Moved by Joyce Weise, seconded by Carl DeVree, to
adopt ZBA Policy 2006-01, Meeting Procedures, as presented.
MOTION CARRIED.
#060222-04 - (VAR0603)
Dentistry
by Dadd, 657 Baldwin, is requesting to have a sign 48 feet from the centerline
of Baldwin, a variance of 12 feet from the 60 feet (from which a sign cannot
extend over) required in Sec. 25.6(B)(2); to have parking in the required front
yard, a variance from Chapter 24 footnote (L) which states that a required
front yard shall not be used for parking; and/or to have 13 parking spaces, a
variance of 2 spaces from the 15 required in Sec. 26.8 (for 5 examining rooms);
in an (OS) Office Service District, on parcels of land described as P.P. #
70-14-13-174-014 and 70-14-13-174-015, located at 657 and 643 Baldwin,
Georgetown Township, Ottawa County, Michigan.
Dr. Mitch Dadd represented
the applicant and presented the request.
He stated the following. He
purchased the office and changed the sign.
He found out after that he needed a permit and that in his experience it
was not typical that a permit was needed.
He is not able to move the sign back because there is no room and it
would hang over the handicap ramp, but he does need the sign to identify his
business. It is not a good design since
it hangs over rather than being centered on the pole. He currently has three exam rooms and to run
smooth he would like to have five rooms.
The new rooms would stay in the current footprint. He would need three more parking places to
meet the ordinance. Compares to others
in the area, his parking should be permitted in the front yard because most
other businesses in the area have the same problem.
The zoning administrator
presented a review. Dr. Dadd recently
purchased an existing dental practice previously owned by Dr. Larsen located at
657 Baldwin. After moving in Dr. Dadd
replaced the name on the sign with a new one containing his business name
without obtaining a sign permit. He
indicated that his sign company has not had to obtain sign permits in the past
to change a sign in this way and that is why he did not know that a sign permit
is required. The sign that existed was
non-conforming because the sign pole is located 56 feet from the centerline of
Baldwin. The ordinance requires that the
sign can not extend over the distance of 60 feet from the centerline of the
road because Baldwin is listed in Chapter 24 footnote (b). The sign itself is 8 feet long and the full
length is extended toward Baldwin.
Therefore, the sign extends to a point 48 feet from the centerline of
the road, which is 12 feet from where the ordinance requires the location to
be.
The use of dental office is a
conforming use that is allowed in the OS district. The structure on the site is actually a converted
single family home and is non-conforming because it does not meet current
ordinance requirements for the OS district for such issues as parking in the
front yard and setbacks on Baldwin. The
structure was obviously constructed years prior to the area being zoned OS and
years prior to the adoption of the ordinance that requires the extra setbacks
on Baldwin. There are no records of when
Dr. Larsen (the previous owner) began his business at this location nor are there
records of a sign permit being issued for the current sign. Since it was obviously years ago, the sign
(as well as the site) would have been considered to be legal
non-conforming.
Sec. 25.10 states that a
legal non-conforming sign could continue indefinitely except if any changes are
made to the sign including words, symbols used or the message displayed on the
sign. Since the sign was changed, the
ordinance requires that it must meet the current ordinance. To meet the ordinance, the sign pole would
have to be moved back at least 12 feet.
The letter submitted by the
applicant indicates that he would like this sign to remain for one year at
which time the sign would be replaced with a 5 by 10 square foot sign that
would be centered on the pole. This would
result in the sign extending toward Baldwin 5 feet rather than 8 feet. This new sign would still be 51 feet from the
centerline, 9 feet closer than the ordinance would permit. The applicant also indicates that the sign
would be a monument sign, but further information on the future proposed sign
is not provided. It should be noted that
if the sign is ground mounted (rather than on a pole), the setback is 15 feet
further back to not obstruct traffic entering or traveling upon the street.
The applicant is asking for
an additional variance for parking.
Currently there are three examining rooms in the structure. The applicant would like to expand by adding
two more examining rooms within the current structure. Sec. 26.8 requires three parking spaces per
examining room and there are currently 12 parking spaces. Since 15 parking spaces would be required for
five examining rooms, three more are needed.
The applicant is proposing to add one adjacent to the building which
meets ordinance requirements. He is also
proposing to add one along the front parking row and one along the back parking
row. The parking in the front row is
currently non-conforming because Chapter 24 footnote (l) states that except for
necessary drives and walks, the front yard shall be landscaped and not used for
parking, loading or accessory structures.
The front yard setback on Baldwin is 30 feet measured from a point 60
feet from the center of the road, for a total of 90 feet from the center of the
road. The whole front row already exists
in this front setback area, which makes it non-conforming. In addition, the setback off Thomas is
required to be 30 feet from the right-of-way line and the two proposed parking
space would also be located within that front setback area as well, which is
required to be landscaped without parking.
The applicant has further
asked that if variances were not granted for the parking locations, that a
variance be granted for the number of parking spaces. Therefore, he would have 13, which would be a
variance of 2 from the total of 15 that would be required for the five
examining rooms (3 per examining room).
Granting a variance for less parking would probably be less intrusive on
the neighborhood and would appear to be self-policing since patrons would
probably not come to a dentist where there was no place to park. Note that parking on the street for such a
use is not allowed in the ordinance.
The applicant references
other businesses close to his location.
In two places, Sec. 3.7 and Chapter 24 footnote (s), the ordinance allows
for setbacks to be the same as those already established by existing
setback. However, the ordinance
specifically states that this new established setback is not allowed in those
streets (including Baldwin) identified in Chapter 24 footnote
(b). Therefore, it is irrelevant what
the other businesses have in the area and the ordinance requires adherence to
regular setback requirements.
Another issue to note is that
this site is actually two parcels and that fact further contributes to making
the whole site non-conforming. The
parcels should be combined and could be a condition of approval if any variance
were to be granted. Minutes from
meetings when other such variances were approved for sign location for existing
businesses on Baldwin had been provided.
Four similar variances were granted for signs on Baldwin to be located
closer to the centerline.
Carl DeVree asked the
applicant if he would combine the parcels and the applicant stated that he
would. It was also noted that there was a
large tree in the back yard.
Joyce Weise said that it was
difficult to maintain the 20 feet needed for the parking place with the tree in
the yard.
John Fanthorpe asked if the
applicant planned to keep the sign in the same place and was told that the plan
was to leave the pole, but to center the sign.
Honderd said that he
understood why the applicant was requesting the sign variance.
Joyce Weise asked if the sign
could be placed in the grassy setback and was told yes. She asked if it would have to be moved back
if the road was widened.
The zoning administrator
suggested that if the ZBA decided to grant the sign variance, a condition of
approval could be that the applicant would be responsible for any costs
incurred if the sign should have to be moved in the future for road
improvements. She clarified that the
location of the sign would be evaluated if and when there were road
improvements, but the sign would not necessarily have to be moved.
Daniel Lennington said that
they should reduce the nonconformity like BP did when the variance was granted
for them. He said that the variance
could be for 9 feet.
There was a discussion
regarding a length of time that should be stipulated as a deadline as to when
the current sign should be moved.
Carl DeVree said that he was
disturbed that the applicant and the sign company did not check out the
ordinances prior to putting up a new sign because the sign company should know
to check since this is their business.
Moved by Greg Honderd, seconded by John Fanthorpe, to
approve variance
VAR0603 for Dentistry by Dadd, 657 Baldwin, to have a sign 51
feet from the centerline of Baldwin, a variance of 9 feet from the 60 feet
(from which a sign cannot extend over) required in Sec. 25.6(B)(2); in an (OS)
Office Service District, on parcels of land described as P.P. #
70-14-13-174-014 and 70-14-13-174-015, located at 657 and 643 Baldwin,
Georgetown Township, Ottawa County, Michigan, based on the following:
1.
This is a site and structure that has
existed prior to the adoption of ordinances which affect setbacks and the
location of the sign.
2.
The 32 square foot per side sign is 43
square feet less than the 75 square feet per side permitted and has less of an
impact.
3.
At least four other variances were granted
for freestanding pole sign along the portion of Baldwin that has already been
widened to five lanes.
4.
The standards of the ordinance have been
met.
5. The variance will be in the public interest and will ensure that the spirit of the ordinance is observed because the sign was presumed to be pre-existing prior to the adoption of the ordinance that required the new location and prior to the widening of Baldwin. It was not their fault that the road was widened and that the ordinance was adopted. It is presumed to have been conforming at the time it was erected and became non-conforming by action taken by the Township.
6.
There are practical difficulties in complying with the
standards of the ordinance because the relocation of the sign would place it in
the middle of a parking lot and could interfere with the existing structure.
7.
The sign has existed in this location without being
detrimental.
8.
Granting the variance is necessary for the
preservation of a property right because signs are very important to the
business. Other business signs in the
area are nonconforming as well, and are located the same distance from the
centerline of Baldwin.
9.
It was not action of the applicant that required the
variance, but rather the action of the Township by adopting the ordinance requiring
the extra distance and the Road Commission for widening the street.
And with the following conditions:
1. The applicant would incur all expenses relating to relocating the sign if it ever should have to be moved in the future due to any further road widening.
2.
The two parcels are combined.
3.
If and when a new sign is constructed, it must be
located at so as to not extend over a point 51 feet from the centerline of
Baldwin.
4.
The only sign permitted by the variance is a pole
mounted sign because a ground mounted sign is required to be located at least
an additional 15 feet back from the centerline of Baldwin. If a ground mounted sign is ever erected on
the property, it must meet ordinance requirements.
5.
The applicant obtains a sign permit for this and any further
sign changes and would meet the ordinance in every other regard except for
elements approved by the ZBA.
6.
The existing sign must be replaced within an 18 month
period.
MOTION CARRIED.
For the parking variance request
There was discussion regarding
the parking design on the site.
Greg Honderd asked about
employees and was told that there would be 6 or 7 and one examine room would
always be empty. He said that he was not
in favor of granting a variance for additional parking to be located in the front
yard.
John Fanthorpe asked if the
applicant could get by with four examine rooms.
The applicant said that it
would offset his bottom line and it would be unfair to not allow him to expand
since he had more space than the other businesses around him.
John Fanthorpe said that the
ordinance changed and the site became “grandfathered.”
The applicant said that he
did not want to have just 4 examine rooms.
Dan Lennington said that a
recent ordinance amendment allows the Planning Commission the flexibility to
waive the requirement of some parking spots and that economics would dictate if
patients would come if there was a parking shortage.
Joyce Weise said that the
applicant could get more parking spaces on the site if the parking lot was redesigned
and the drives were redesigned.
The zoning administrator said
that the Planning Commission was considering an ordinance amendment to prohibit
parking within 50 feet of a residential district and this rear yard abutted a
residential district. She said that the
ordinance allows the Planning Commission to waive up to 25% of the required
parking spaces.
Joyce Weise asked if the plan
would be reviewed by the Planning Commission and was told no since the only
changes to the structure would be interior.
Moved by Greg Honderd, seconded by Joyce Weise, to deny the variance
request by Dentistry by Dadd, 657 Baldwin, to have parking in the
required front yard, a variance from Chapter 24 footnote (L) which states that
a required front yard shall not be used for parking; in an (OS) Office Service
District, on parcels of land described as P.P. # 70-14-13-174-014 and
70-14-13-174-015, located at 657 and 643 Baldwin, Georgetown Township, Ottawa
County, Michigan, based
on the fact that the request does not meet the seven standards.
MOTION CARRIED.
Moved by Joyce Weise, seconded by John Fanthorpe, to approve the
variance request by Dentistry by Dadd, 657 Baldwin, to have 13 parking
spaces, a variance of 2 spaces from the 15 required in Sec. 26.8 (for 5 examining
rooms); in an (OS) Office Service District, on parcels of land described as
P.P. # 70-14-13-174-014 and 70-14-13-174-015, located at 657 and 643 Baldwin,
Georgetown Township, Ottawa County, Michigan, based on conformance
with the seven standards of the ordinance, and because the site could be
redesigned to have more parking spaces if the applicant’s business warranted
it, specifically in the rear yard, plus the ordinance allows the Planning
Commission to waive up to 24% of the required parking spaces.
The applicant was directed to
apply for the Zoning Compliance Certificate for the parking lot soon because
the ordinance amendment to prohibit parking within 50 feet of a residential
district would go into effect the end of March.
The applicant said that he would
have to remove the tree.
Greg Honderd said that the
applicant has the room to expand and to meet the ordinance.
MOTION CARRIED.
#060222-05 - Other Business-Appeal (VAR0604)
Mark
Capel (Grand Rapids Auto Auction, GRAA Property Management), 2380 Port Sheldon
Ct., is appealing the zoning administrator’s determination regarding municipal
disapproval for dealer licenses. picture 1,
2,
3,
4,
5,
6,
7
Mark Capel
represented the applicant and presented the request. He stated the following. His class B license was zoned out of the
building. The reason he wants the
license is because the auto auction has 100 employees and a million dollar
payroll. He was trying to add businesses
to keep employees and looking for a way to make ends meet. This is a business opportunity and the
Chinese make a motor cycle that requires a class A license by the State. He does not understand that he would be
allowed to distribute plumbing supplies and the building accommodates storing
and shipping. It is a fact that a class
A license is required by the State. His
existing class B license has expired. He
approached the zoning administrator for help in trying to make it work. He is trying to find a legal way to make it
work. He is trying to take on the other
business. He owned the parcel in ’04 and
the auction since ’72. The other pieces
were not included in the site plan and he was asking for blanket approval to
use any of the parcels in case he leased the building out. Now the motorcycles were stored in the
building and he can’t sell or ship them.
He wants a class A license. He
would not have retail and would not display the cycles. He was asking for the license on the current
property so that he does not have to lay people off. He is not looking to run a retail business
and to display.
The zoning administrator
presented a review. The Business
Licensing Unit of the State of Michigan began requiring Zoning and Municipal
Approvals for Dealer Licenses (for vehicle sales) for licenses issued and/or
renewed beginning in 2006. All dealers
were notified repeatedly for nearly a year prior to the requirement taking
effect. Beginning last summer, the
Township started receiving requests for signatures for the Zoning and Municipal
Approvals from dealers. On the Municipal
Approval form, the State asks the Municipal Authority to attest to the
property’s compliance with zoning requirements.
The wording of the form is as follows: “The license being applied for (which is the Class “A” license for Capel
Imports to be a new vehicle dealer) would permit, but not require, all
business activities described above.”
“Municipal requirements may include: local building code requirements,
land use requirements, sign ordinance, local licensure, etc…” Then the form gives three options: 1.
Location MEETS all the municipal requirements for dealer classifications
checked above; 2. Location DOES NOT MEET all the municipal requirements for
dealer classification listed above; 3. There are NO MUNICIPAL REQUIREMENTS in
this jurisdiction for dealer classification.
On the Zoning Approval form,
the wording states: “The licenses being applied for (which is the Class “A” license for Capel Imports for be a new vehicle
dealer) would permit, but not require, all business activities described on
the reverse.” On the reverse, the
wording of the form for Class “A” (New Vehicle Dealer) states: “The dealer buys
and sells new vehicles under a franchise agreement or a contract with a new
vehicle manufacturer.” (FYI-Class “B” is
for the dealer to buy and sell used vehicles)
Then the form gives three options: 1. Location is APPROVED for dealer
classification checked; 2. Location is DISAPPROVED because it is not properly
zoned; 3. Location is APPROVED because there is NO zoning ordinance in effect.
The zoning administrator said
that she had a conversation with Kelli Garland, Business Licensing Unit of the
State of Michigan, regarding these forms and this situation. According to the State, if a municipality
signs a form giving approval, they are attesting to the fact that any and all
operations allowed under the classification requested are allowed and that all zoning
and municipal requirements are met. The
State supplied 13 pages of information regarding Dealer License approvals and
this packet is available in the Township Office for review. According to the information submitted by the
State, the requirement for the municipal approval is stipulated in PA 495
signed into law by the governor in 2004.
Sec. 2.77 of the Zoning
Ordinance defines the use of vehicles for sale as an open air business. The use of an open air business is permitted
only with a special use permit in the (CS) Community Service Commercial
District and in the (HS) Highway Service Commercial District. In order for a special use permit to be
approved there are four general standards that must be met in addition to ten
specific standards that must be met. The
specific standards include such stipulations as the lot size must be a minimum
of one acre, the lot must have at least 200 feet of width, all parking areas
must be paved, and no display area can be located within ten feet of a
right-of-way line. These Zoning
Ordinance requirements have been in place for over 20 years. The use is (and has been for at least the
past 20 years) strictly regulated because the Township has determined it to be
a substantially intense use.
The use is NOT permitted in
any other zoning district and has not been permitted in any other district for
at least the past 20 years. In fact, in
the past the Township has actually required that vehicle sales uses cease in
the Industrial district for some businesses that had been in operation for over
a year (these people had move in without Zoning Compliance Certificates and the
Township only became aware of them after complaints were received).
The zoning administrator
explained that when she received an application for a Zoning and Municipal
Approval for a dealer license, she first checked to see if there was an
approved Zoning Compliance for the use and an approved special use permit for
the use of open air business for vehicle sales.
If a site had these two or even one of these approvals, she signed and
approved the form. If a site had neither
of these approvals, she checked to see if these approvals could be obtained and
directed that the applicant pursue this avenue if possible. If a site had neither of these approvals and
it was not possible for the approvals to be obtained (i.e. the use was in the
wrong zoning district or the parcel could not comply with the special use
standard), she further researched and investigated (with the help of the Code
Enforcer) to determine if the use of vehicle sales was present on the site for
a period of longer than at least 15 to 20 years (no matter who the owner or
operator was or no matter if the owner/operator changed during these
years). If evidence was produced that
the use had continually been in existence for at least 15 to 20 years even
without any approvals and without meeting any zoning requirements, she made the
determination that the use was “legal non-conforming” and signed and approved
the form because the use would be allowed to continue indefinitely unless
and/or until it ceased for a twelve month period. If none of these scenarios were applicable,
she signed the form indicating that there was NO Zoning and Municipal Approvals
and provided the applicant with a letter detailing why. In addition, she provided information to all
those who were disapproved that reconsideration was possible if evidence could
be produced that the use had been in existence continuously at the subject site
for at least 15 to 20 years.
The zoning administrator had
provided the information that the following are the listed addresses in the
appeal:
The zoning administrator
stated that while the Township is definitely
not in the business of putting companies out of business, neither can the
Township misrepresent approvals to the
State. She said that she must address
these forms and requests honestly. If there would be any legitimate reason that
she could find to sign for approval, she would do it. However, if she could not find any legitimate
reason to attest to the State that the property meets zoning approvals (when it
does not meet zoning approval), she could not in good conscience sign for the
approval. If the ZBA can make any
different determination and find a way to attest to the State that the sites do
meet zoning approval, the secretary of the ZBA could sign the form and the
responsibility would then be with the ZBA rather than the zoning administrator
for the decision.
Greg Honderd said that the
applicant has other options to pursue such as applying for an ordinance change
or apply to have inside retail. He said
that there were no guarantees that the applications would be approved.
The applicant said that he
understands that the laws have changed.
He said that he has been in business since 1972 with the auto auction
and has had a car lot since then. He
said that he took over a parcel in 2001 and immediately got a car license
there. He said that he has five parcels
and three were on the site plan. He said
that it does not matter which parcel he gets approval for the dealer license
on. He said that all the parcels are
within the gate and anyone would have to enter the gate to access the
parcel. He said that people are not
coming to buy retail or try anything. He
asked that the two pieces not used on the site plan be used.
The zoning administrator
explained that the use of vehicle sales would have to be present on a parcel
for many years to be determined to have nonconforming status. She said that the use of the auto auction has
been declared by the applicant’s own representative to NOT be vehicle
sales. She said that if the applicant
had not indicated to the Township that vehicle sales was NOT taking place on
the parcels associated with the auto auction, she would have been able to sign
the form. She said that she could not
sign the form for any parcels related to the auto auction since the applicant
had put in writing that the Auto Auction involved only the warehousing of cars
in order for the addition to be approved and for the addition to not be
considered expanding a nonconforming use.
The applicant said that his
architect knew what his business was and should not have said that there were
no vehicle sales. He said that he did
not know that his architect had said that the use was warehousing of vehicles. He said that he did not have the intention to
defraud. He said that he did not
disagree, but asked to use other parcels.
The zoning administrator
again explained that the use of vehicle sales would have had to take place for
many years at a site to have nonconforming status and no parcel related to the
Auto Auction could be determined to have legal nonconforming status for the
sale of vehicles since the applicant stated to the Township in 2004 when he
came for site plan approval that no vehicle sales took place at the Auto
Auction. She said that the applicant had
written on the application and on the site plan that the use was what it had
always been, which is the use of warehousing vehicles. She said that if the determination was made
that the use was vehicle sales, the addition could not have been approved
because a nonconforming use would have been expanded in violation of the
ordinance. She said that the applicant
could not have the use both ways to suit whatever approvals he sought at the
time. She said that she had tried to
find a way to sign the form while being honest with the State, but could not
find a way.
Joyce Weise said that the
applicant could seek a rezoning to change the parcel to a zoning district where
vehicle sales are permitted.
The applicant again asked for
legal nonconforming status.
Dan Lennington said that the
legal nonconforming status for the sale of vehicles for any parcels relating to
the Auto Auction is gone since the applicant presented to the Township in
writing that the use was warehousing in order to get the addition
approved. He said that vehicle sales are
not permitted in the Industrial district.
He said that the applicant would have to apply for a rezoning or
ordinance amendment. He said that there
was a clean slate since the time that the applicant stated to the Township in
writing that the use was not vehicle sales in order to be permitted to
expand.
John Fanthorpe said that if
the Township determined that the use of vehicle sales was allowed only for the
motorcycle sales, a new owner could have vehicle sales.
Dan Lennington said that the
chain was broken and that the zoning administrator had looked at the options.
Greg Honderd said that the
zoning administrator made the correct decision and that the applicant had the
option to ask for a rezoning or for an ordinance amendment. He said that the Planning Commission
hesitated to go against the Master Plan or to change the ordinance for one
case.
The idea was brought up that
the applicant could pursue a PUD because there were enough acres.
Carl DeVree said that the
State law is clear that a dealer must meet the criteria listed on the form and
this site does not meet the criteria.
Moved by Carl DeVree, seconded by Joyce Weise, to concur with the
Zoning Administrator’s determination that the sites do not meet zoning
approval. This determination is based on
the findings of facts that had been presented earlier, that the sites do not
meet zoning requirements and do not have nonconforming status and the fact that
the applicant has the opportunity to pursue other options.
MOTION CARRIED.
#060222-06 – Adjournment
The meeting was adjourned at 8:30 p.m.
