ZBA minutes 7-26-06

MINUTES OF THE REGULAR MEETING OF THE GEORGETOWN CHARTER TOWNSHIP ZONING BOARD OF APPEALS HELD JULY 26, 2006

The meeting was called to order at 7:30 p.m. by Chairman Daniel Lennington.

Members Present: John Fanthorpe, Greg Honderd, Joyce Weise, Daniel Lennington and

Carl DeVree

Members Absent: none

Others Present: Mannette Minier, Secretary and Zoning Administrator, and the applicants

#060726-01 - Approval of the minutes

The minutes of the regular meeting held on June 28, 2006 meeting were presented.

Moved by Joyce Weise, seconded by Carl DeVree, to approve the minutes of the regular meeting held on June 28, 2006, as presented.

MOTION CARRIED.

#060726-02 – (VAR0611)

Georgetown Machine & Engine (George Brzezinski), 2336 Port Sheldon, is requesting to have a twenty (20) foot rear yard setback, a variance of twenty (20) feet from the forty (40) feet required in Chapter 24, in an (I) Industrial district, on a parcel of land described as P.P. # 70-14-22-363-002, located at 2336 Port Sheldon, Georgetown Township, Ottawa County, Michigan.

Steve Smit, Focus Engineering, represented the applicant and presented the request. He stated the following. He agrees with the findings of the zoning administrator as presented in the review that had been posted on the internet. However, from a practical standpoint, the yard to the south was a side yard because when people entered the site, they parked on the east side and entered the building from the east side. Practically speaking, it would seem that the rear yard was on the west side and the yard to the south was a side yard. If people would go to the site and stand behind the building, they would not determine this was a rear yard but would probably determine it to be a side yard.

The zoning administrator pointed out Sec. 2.63 which defines lot lines and Sec. 2.101 which defines a yard. She explained that the ordinance specifically determines the front, side and rear yards of a site. A GIS picture was displayed on the screen and the yards and the site layouts of the parcels that surround the subject site were described. It was noted that the adjoining sites did not have rear yards in the same layout as the subject site but still met ordinance requirements. The zoning administrator presented a review as follows.

Request

The request is for an addition to an existing building in the Industrial district that would result in a 20 foot rear yard setback which is a variance of 20 feet from the 40 feet required in Chapter 24 for buildings in the Industrial district.

History

In November 2005, an addition was approved by the Township for an existing building at 2336 Port Sheldon. This addition is now constructed and meets the rear yard setback requirement of 40 feet. Now the applicant is requesting a second addition to reduce the rear yard setback to 20 feet. The site plan submitted with the application shows the existing building with the 40 foot rear yard setback and the proposed 20 foot addition with the proposed 20 foot rear yard setback.

Summary

According to the answers provided on the application, the basis of the request is that the neighboring sites have reduced rear yard setbacks. However, the attached GIS map shows the neighboring sites and shows the existing buildings with setbacks that meet the ordinance (albeit the buildings are situated differently on the sites with front, side and rear yards that are not the same as those on the subject site).

On the following GIS map, the subject site is lot 11 highlighted red (P.P. # 70-14-22-363-002) and the satellite picture was taken prior to the construction of the new addition. Note the following.

1) Lot 13 (P.P. # 70-14-22-363-001) is the site to the west (left) of the subject site. Note that this is a corner lot with front yard setbacks on both Port Sheldon St. and on Port Sheldon Ct. Sec. 2.63 of the Zoning Ordinance details how lot lines and yards are determined. Since this is a corner lot, the ordinance permits either the eastern property line (to the right of the building on lot 13) or the southern property line (to the bottom of the building on lot 13) to be designated as the rear yard (with the 40 foot rear yard setback). The site was constructed with the rear yard setback to the east (right) of the building on lot 13 and the side yard setback to the south (bottom) of the building. Therefore, the fact that the building to the west (left) (which is lot 13) of the subject site projects beyond the building on the subject site (see the attached picture) is due to the fact that this is the SIDE yard of the adjacent building requiring only a 20 foot setback in Chapter 24, not the rear yard setback of 40 as is the case on the subject site.

2) Lot 10 (P.P. # 70-14-22-363-004) is the site to the east (right) of the subject site. Note that this parcel is nearly twice as deep as the subject parcel which is the reason that this building projects beyond the building on the subject site. The building on lot 10 has a rear yard setback much larger than the 40 feet required in Chapter 24. Therefore, the reason the building on this site extends beyond the building on the subject site is because the parcel is nearly twice as long.

3) Lot 12 (P.P. # 70-14-22-363-003) is the site to the south (bottom) of the subject site. Note that this site fronts on Port Sheldon Ct. which results with the rear yard setback to the east of the building and side yard being the yard to the north of this building (which is adjacent to the subject site). Chapter 24 requires a 20 foot side yard setback. Therefore, the reason this building is only 20 feet from the property line shared with this site and the subject site is because the building on lot 12 has a side yard setback to this property line.

In conclusion, the applicant’s statements that their request for a 20 foot rear yard setback will uphold the intention of the ordinance because the adjacent building to the west is at the same setback is incorrect because the building to the west has a side yard setback from this property line. The applicant’s statement that they want the right to construct a building that reflects the rights of the neighboring parcels is incorrect because the neighboring sites do meet setback requirements. The only difference is the way each building is situated on the parcels and which directions are the side and rear yards.

Variance standards in Sec. 28.11(C) are required to be met in order for a variance to be granted. The standards that have objectively been met are noted with an “X” in the “yes” column and the standards that have objectively not been met are noted with an “X in the “no” column. The ZBA should determine if they concur with this determination.

Variance ID

VAR0611

Applicant

Georgetown Machine & Engine

Address

2336 Port Sheldon

Request

To have a rear yard setback of 20 feet

Date

July 5, 2006

#	YES	NO	CONDITIONS (Chapter 28.11-C)
1		X	Granting the variance(s) will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.
2	X		Granting the variance shall not permit the establishment within a district of any use which is prohibited, nor shall any use variances be granted.
3		X	That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting form exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.
4			That the granting of such variance will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.
5		X	That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.
6	X		That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance with Section 27.12.
7		X	That the variance is not necessitated as a result of any action or inaction of the applicant.

Findings.

The determination can be made that standards 2 and 6 are met and that standards 1, 3, 5 and 7 are not meet. The ZBA should discuss those findings and determine if they agree with the determinations. The ZBA should determine if standard 4 is met. The following is provided for information and discussion.

Standard #1 - Granting the variance will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.

Not met. The spirit of the ordinance is to provide uniform setbacks for structures and buildings. The buildings surrounding this site do meet the ordinance requirements (as near as can be figured with the GIS map) contrary to the information provided by the applicant. The only difference is that the buildings are situated differently on the sites with side yard setbacks in the area near the subject site. See the summary above.

Standard #2 - Granting the variance shall not permit the establishment within a district of any use, which is prohibited, nor shall any use variances be granted.

Met. The use would continue to be the same.

Standard #3 - That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting from exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.

Not met. In fact, the subject site currently exists with a 40 foot rear yard setback without any practical difficulties. There are no exceptional, extraordinary or unique circumstances or conditions applying to the property that do no apply to other properties in the general vicinity. The only circumstances that exist are that side yard setbacks from neighboring properties abut this site due to the configurations of the land splits and the locations of the buildings on the site. However, those abutting sites do meet ordinance requirements even though the buildings are situated differently on the site. The applicant states that the site was initially constructed when setbacks were different than current requirements. Any new construction must meet current standards regardless of what the standards were when the initial building was constructed.

Standard #4 - That the granting of such variances will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.

For discussion. It does not appear that granting the variance would be a substantial detriment to adjacent properties or improvements in the vicinity; however, there is no legitimate reason why this property should be allowed to have a larger building that encroaches upon the rear yard setback when none of the adjacent properties are allowed the same right. Further, there are no mitigating circumstances to obstruct the view of the proposed building addition and smaller rear yard setback from the view of the adjacent properties.

Standard #5 - That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.

Not met. In fact, if the variance were to be granted, all the abutting properties could apply for smaller rear yard setbacks since there is no reason why this property should be allowed to have reduced setbacks and not the others in the vicinity. As detailed above, according to the attached GIS map all the adjacent properties meet or exceed minimum setback requirements. The only difference is that the buildings on the adjacent properties are situated differently resulting in side and rear yards different from the subject site.

Standard #6 - That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance in Section 27.12.

Met.

Standard #7 - That the variance is not necessitated as a result of any action or inaction of the applicant.

Not met. The only reason for the variance request is simply because the applicant wants a larger building than what is permitted for the size of the parcel.

Discussion

As noted and demonstrated above with the GIS map, the neighboring properties meet setback requirements contrary to the information provided by the applicant. The only difference is the situation of the buildings on the sites. There are no practical difficulties resulting from exceptional, extraordinary or unique circumstances or conditions applying to the property that do no apply to other properties in the general vicinity. The applicant is not denied any property right that others in the vicinity have.

There was discussion regarding the sections of the ordinance relating to determining yards. It was noted that Chapter 24 provided the district regulations.

Dan Lennington stated that Sec. 2.86 defines setbacks and is used in conjunction with the requirements of Chapter 24.

The chairman opened the public hearing.

George Brzezinski, owner of the subject property, stated the following. He was asking for the additional 20 feet and the building addition would bring more tax dollars. The addition would not affect his neighbors and no one has any objections. If he had an additional 20 feet his building would line up with Jenison Auto. The addition would not hinder anyone and lot number 13 has cars parked adjacent to his property. The front and back of his building were more like the west and east sides because people come in the front on the east side. He does not see how this would hurt anyone and it would bring more tax dollars.

The chairman closed the public hearing.

Joyce Weise said that there was room in the side yard on the west side and she asked why they did not use the side yard for the addition.

Steve Smit said that they would love to use the side yard on the south side.

Joyce Weise said that the south side was the rear yard according to the ordinance and she asked why they did not use the area on the side yard to the west since there was ample room for an addition there to build an addition and still meet the 20 foot side yard setback requirement.

Steve Smit said yes that area was available for an addition but there was no access to it for drives and parking. He said that his client sold some property that had a storage unit on it and now needs a personal storage area.

Greg Honderd said that an addition could be constructed on the west in the side yard where it was legally allowed and the parking lot could go to the rear property line with access provided by adding pavement.

Dan Lennington asked if they had drawn alternative options.

Steve Smit said that he had not drawn any other options because this is where his clients wanted the addition to go.

Dan Lennington said that the yards were set by the ordinance and that the east and west yards were side yards and the south yard was the rear. He said that the yards were not determined by a popularity contest, but were clearly defined in the ordinance. He said that he appreciated the argument presented by the application, but the ordinance was very clear as to which yard was the rear yard.

Steve Smit stated the following. He agreed that the definitions were clear in the ordinance and he does not disagree with the zoning administrator’s findings in the ordinance. He agrees with the findings. However, if a lay person was put on the site, it would not be easy for them to figure which yard was the rear. They would probably end up in the side yard and call it the rear.

Dan Lennington said that the number one duty of the ZBA was to review a variance request according to the seven standards of the ordinance and he does not see any extraordinary or exceptional circumstances pertaining to the property. He said that the lot was a regular square size.

Steve Smit said that the review for standard number three was justified and that number one was in the eye of the beholder. He said that number 5 was a practical interpretation and a lay person could interpret that they met the standard.

Dan Lennington asked if the lay person was given a copy of the ordinance definitions would they be able to then determine which yard was the rear.

Steve Smit said that with the definitions from the ordinance a person could probably figure out which was the rear yard.

Moved by Greg Honderd, seconded by Joyce Weise, to deny variance (VAR0611) Georgetown Machine & Engine (George Brzezinski), 2336 Port Sheldon, to have a twenty (20) foot rear yard setback, a variance of twenty (20) feet from the forty (40) feet required in Chapter 24, in an (I) Industrial district, on a parcel of land described as P.P. # 70-14-22-363-002, located at 2336 Port Sheldon, Georgetown Township, Ottawa County, Michigan, based on the fact that the request does not meet the standards of the ordinance as detailed in the findings.

Greg Honderd stated the following. If the variance was granted and the additional 20 feet was added to the building, the applicant would tie himself up because he would not be able to fully utilize the lot. An addition could be constructed on the west side to meet the ordinance and there would be room for truck access and additional parking. By putting the addition on the rear, the applicant would not be able to fully utilize the site.

Dan Lennington said that the applicant admitted that he had not considered any alternatives. He said that the request definitely did not meet standard number 3 because there were no exceptional or extraordinary circumstances that were presented or even argued by the applicant.

MOTION CARRIED.

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#060726-03 – (VAR0612)

Scott and Tamera Achterhoff, 1221 Port Sheldon, are requesting to construct an accessory building in the front yard for a maximum of eight (8) feet, a variance from Sec. 3.4(A) which states that accessory buildings shall not be erected in any front yard and a variance from Sec. 3.4(F) which states that accessory buildings shall be located in the rear yard or non-required site yard of the lot, in a (MDR) Medium Density Residential district, on a parcel of land described as P.P. # 70-14-23-349-028, located at 1221 Port Sheldon, Georgetown Township, Ottawa County, Michigan.

Scott Achterhoff presented the request and stated the following. Their house was the only one in the neighborhood that does not have a garage. His house was built in the early 1900’s and was approximately 100 years old. It was built before any codes were adopted. He was asking to build a 24 by 24 foot two-stall garage that would not violate the required front yard setback. If the garage was located in a spot that met the ordinance, they would not be able to turn to get a vehicle in or out. They needed 6 feet but asked for 8 feet to be safe. To the north, the neighbor’s 25 by 36 foot pole barn extends closer to the street than what he is requesting. There is a barn behind his house that he does not own. If the garage is put in a spot that meets the ordinance, his neighbor would not be able to access the barn behind his house.

Dan Lennington asked if there was an easement for the access to the barn behind the house.

Scott Achterhoff said that there was no written easement but the people who owned the barn had used the driveway for access for a long time. He said that his house was the original house for the farm that the barn was part of and that he was trying to be a good neighbor.

A diagram was presented depicting the difference between a required front yard and a front yard, and the ordinance definitions in Sec. 2.101 and Sec. 2.102 for yards were provided. There was discussion regarding the difference between a front yard and a required front yard. It was explained that the proposal met the required front yard setback but the accessory building was proposed to be in the non-required front yard.

The zoning administrator presented a review as follows.

Request

The request is to construct a detached accessory building as a garage (to park and store the applicant’s vehicles) to extend a maximum of 8 feet into the front yard that abuts 12^th Ave. Note that it is NOT the required front yard. The location of the requested accessory building would be such that the required front yard setback would be met. The required front setback is 35 + 50 = 85 feet from the centerline of 12^th Ave. The proposed location would meet this setback requirement. In this instance, the required front yard and front yard are not equal, but rather the front yard is larger than the required front yard. Since the house is situated near to the western property line, a very large front yard (not required front yard) was created according to Sec. 2.101 which defines the front yard as the yard between the front of the house and the right-of-way of 12^th Ave. The house was not initially constructed to situate on the lot this way 100 years ago when it was built and was part of the farm but subsequently ended up near the western property line due to splits that occurred many years ago and the construction of the adjacent streets.

No attached accessory building exists and due to construction code issues, the accessory building could not be attached to the house. The situation is further compounded by the fact that the neighbors to the north own the barn that was initially part of this farm and they use the applicant’s driveway as the only access to the barn since the barn doors are on the south side of the barn. If the applicants were to locate the accessory building at the end of their driveway, the neighbors would virtually have no access to the barn because this is the side the barn doors are on. While the applicants are not aware of any formal recorded easements, they have continued to allow their neighbors to use their driveway to access the barn since this practice has been in place for the past 70 years. In addition, the proposed location (with 26 feet from the western property line to the accessory building) would give the applicants enough room to turn their vehicles around the corner of the house to access the proposed garage.

History

The house was constructed nearly a hundred years ago and was part of a farm. Since that time the parcel was split multiple times, roads were constructed adjacent to the site and the use of farming has ceased. The barn to the north of the house was initially part of the same farm, but was split off and now owned by the property owner to the north. For the past 70 years, the people who owned the property to the north (not the same people over the whole 70 years) have used the driveway on the applicant’s site to access the barn due to the location of the barn doors. Although the applicants are not aware of any formal recorded easement, they have allowed their neighbors to continue to use their driveway to access the barn.

Variance ID

VAR0612

Applicant

Scott and Tamera Achterhoff

Address

1221 Port Sheldon

Request

To construct an accessory building in the front yard (NOT required front yard)

Date

July 5, 2006

#	YES	NO	CONDITIONS (Chapter 28.11-C)
1			Granting the variance(s) will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.
2	X		Granting the variance shall not permit the establishment within a district of any use which is prohibited, nor shall any use variances be granted.
3	X		That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting form exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.
4	X		That the granting of such variance will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.
5			That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.
6	X		That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance with Section 27.12.
7			That the variance is not necessitated as a result of any action or inaction of the applicant.

Findings.

The determination can be made that standards 2, 3, 4 and 6 are met. The ZBA should discuss those findings and determine if they agree with the determinations. The ZBA should determine if standards 1, 5 and 7 are met. The following is provided for information and discussion.

Standard #1 - Granting the variance will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.

For discussion. Sec. 3.6(I) of the Zoning Ordinance was adopted July 13, 1999 and requires that each dwelling unit shall be provided with an attached accessory building or garage with a minimum of 400 square feet on the main level. The basis of the requirement is to provide each dwelling unit with an enclosed place to store vehicles. This house was constructed nearly 100 years ago and there are no records of any zoning requirements in place at that time. If the variance were to be granted, the applicants would have an enclosed building available to park their vehicles in which would meet the intention and spirit of the ordinance. Two sections of the ordinance, Sec. 3.4(A) and Sec. Sec. 3.4(F), state that accessory buildings shall not be erected in any front yard and shall be located in the rear or non-required side yard. The purpose of the ordinance is to create uniformity in the location of accessory buildings and for front yards to be aesthetically pleasing with landscaping rather than accessory buildings and uses.

Standard #2 - Granting the variance shall not permit the establishment within a district of any use, which is prohibited, nor shall any use variances be granted.

Met. The use of a single family dwelling unit with accessory building is permitted.

Met. There are exceptional, extraordinary or unique circumstances or conditions applying to the property that do not apply to other properties in the area. Those circumstances include the facts that the house was constructed nearly 100 as part of a farm. Since that time, the parcel was split many times and roads were constructed adjacent to the house. A barn that was part of the farm was split off and now owned by the property owners to the north of the site who use the applicant’s driveway as access to the barn. This access was established 70 years ago. The practical difficulties include the fact that the house is situated close to the western property line with a large front yard that exceeds that required front yard. In order to have an accessory building to store their vehicles (and still allow the neighbors access to the barn), the accessory building would have to be a distance away from the driveway to enable to turn at the corn of the house to access the building. This results in the necessity of the accessory building extending a maximum of 8 feet into the front yard. Note that this is not the required front yard and that the accessory building would meet the required setback of 85 feet to the centerline of 12^th Ave.

Met. The addition of the accessory building would permit the applicant’s to store their vehicles in an enclosed building which would be more aesthetically pleasing than storing the vehicles outside. The proposed accessory building would not extend into the front yard as far as the neighbor’s pole barn to the north does and would be less obtrusive than the existing pole barns. (See the pictures.)

Standard #5 - That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.

For discussion. It appears as though the neighboring properties all have garages and most have pole barns that extend further into the front yard as the request by the applicants.

Met. The request would reduce the non-conformity by allowing the vehicles to park in an enclosed building.

Standard #7 - That the variance is not necessitated as a result of any action or inaction of the applicant.

Met. The action that necessitated the request was taken throughout the past 100 years, most likely prior to the Township having zoning ordinances.

Discussion

There appears to be exceptional, extraordinary and unique circumstances or conditions applying to the property that do not apply to other properties in the area relating to the fact that the house is nearly 100 years old and the area actually built up around the house including neighboring houses and adjacent streets. The splits that occurred years ago resulted in the configuration of the house on the lot that created a front yard that is greater than the required front yard. The site has enough distance for the rear yard (to the north); however, the fact that the house is situated close to the western property line extremely limits possibilities for the location of the accessory building. The situation is compounded by the 70-year practice of allowing the neighbors to the north to use the applicant’s driveway to access the barn that had once been part of the farm. There appears to be no other location or way to locate the accessory building on the parcel that would be possible for vehicles to access the proposed accessory building, to permit access to the barn, and to meet the ordinance requirement that does not permit an accessory building in a front yard.

The chairman opened the public hearing.

Gary Weller, 1228 South Marymark, stated the following. If the garage is built on the north side of the house, his neighbor would not be able to turn around and would have to back out onto Port Sheldon. He also would not have vehicle access to his barn. Port Sheldon and 12^th Ave. are busy streets. He has always gotten along with his neighbors who have always allowed him access to his barn.

Dan Lennington asked if this was the only access to the barn.

Gary Weller said the following. There are man doors and service doors, but this is the only way to get a car to the barn. There were other walking accesses. Safety issues were a concern with backing out to the busy street. There would be wasted space unless the garage was located where it was proposed.

Joyce Weise asked how long they have been using the neighbor’s driveway to access the barn.

Gary Weller said that they have been using the driveway to get to the barn for 14 years, but the previous owners also used it. He said that the people always got along with their neighbors.

Dan Lennington said that after a while with continued use for 15 years they would have a prescriptive easement.

Gary Weller said that he walked the property and this was a logical place to put the garage.

The chairman closed the public hearing.

Greg Honderd said that 26 feet would provide a tight area to turn and there was an additional 20 feet to the required front yard setback.

Scott Achterhoff said that there was 18 feet more to the required front yard setback.

Greg Honderd stated the following. People now use 12^th Ave. to get to 8^th Ave. to get on 44^th St. and M-6. For safety reasons it was better for them to make use of the driveway. If the variance was granted he was not opposed to extending the area so that they would not have to make such a tight turn.

It was noted that only 8 feet was published in the notice and the ZBA only had the authority to grant up to the amount in the notice.

Greg Honderd said that they could make the garage wider with less depth.

Joyce Weise said that they already have one building.

Dan Lennington said that they would be decreasing the nonconformity.

The applicant said that he read in the ordinance that he was allowed to have the additional 10 by 12 foot accessory building and he would like to reside it and keep it up.

It was noted that the garage would have to look similar to the house.

Moved by Carl DeVree, seconded by John Fanthorpe, to approve the request Variance (VAR0612) Scott and Tamera Achterhoff, 1221 Port Sheldon, to construct an accessory building in the front yard for a maximum of eight (8) feet, a variance from Sec. 3.4(A) which states that accessory buildings shall not be erected in any front yard and a variance from Sec. 3.4(F) which states that accessory buildings shall be located in the rear yard or non-required site yard of the lot, in a (MDR) Medium Density Residential district, on a parcel of land described as P.P. # 70-14-23-349-028, located at 1221 Port Sheldon, Georgetown Township, Ottawa County, MI, based on conformance with the seven standards of the ordinance. The findings include the following reasons:

1. This is a site and structure that has existed for nearly 100 years which is prior to the adoption of ordinances which affect the yards.

2. The standards of the ordinance have been met.

3. The variance will be in the public interest and will ensure that the spirit of the ordinance is observed because the variance would enable the applicants to have an accessory building that would permit them to store their vehicles in an enclosed structure.

4. There are practical difficulties in complying with the standards of the ordinance because the location of the house on the site after splits occurred resulted in a very small rear yard and very large front yard that is actually much larger than the required front yard.

5. The accessory building will not be detrimental because the building will extend less into the front yard than the neighboring pole barns.

6. Granting the variance is necessary for the preservation of a property right because the neighbors have the property right to have an accessory building (either attached or detached) to store their vehicles.

7. It was not action of the applicant that required the variance, but rather the action of the previous owners throughout the past 100 years by splitting the property.

8. There are no other possible workable options without eliminating the practice of permitting the neighbors to use the applicant’s driveway to access the barn and to allow them to make the turn.

9. It reduces the nonconformity.

The following are proposed conditions:

1. The accessory building must meet the required front yard setback;

2. The proposed accessory building would meet all other Township Codes and ordinances other than the requirements waived by the variance approval;

3. The accessory building should be constructed with materials and design that will be compatible with the main structure.

MOTION CARRIED.

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#060726-04 – (VAR0613)

Ivan and Mary VanderKolk, 5485 Ericridge Ct., are requesting to have a 34 foot rear yard setback, a variance of 6 feet from the 40 feet required in Chapter 24, and to appeal the zoning administrator’s decision that a three seasons room is part of the main structure, in a (LDR) Low Density Residential district on a parcel of land described as P.P. # 70-14-34-238-003, located at 5485 Ericridge Ct., Georgetown Township, Ottawa County, Michigan.

Ivan VanderKolk presented the request and stated that his wife, Mary, was present in the audience. A folder of information was presented, including three letters from neighbors in favor of the variance and a copy of a power point presentation that listed how they determined that they met the ordinance standards. The applicant stated the following. They got a new house and wanted a three season room, which is an enclosed porch without heat. They started with a builder and then got a Cease and Desist Order. They met with the zoning administrator but did not understand the meaning of the ordinances. Jeff Scholten was their builder. The applicant introduced Christopher LaGrand, his son-in-law, who would go through the Power Point presentation discussing the conditions.

Christopher LaGrand presented a Power Point presentation that included the following. They believe that their request meets all seven standards of the ordinance and request that the ZBA grant the variance. They also appeal the zoning administrator’s decision that a three season porch is part of the main structure that is subject to the 40 foot rear yard setback requirement in Chapter 24. Standard 1 is designed to ensure that the core purpose and spirit of the Zoning Ordinance is preserved and protected. The core purpose is uniformity/consistency of development within the LDR district with a similar look and feel, along with the preservation of open space. The requested variance would not disturb the core purpose because setbacks for surrounding parcels vary based on road locations and application of front and side yard setback requirements. The requested variance does nothing to add to the already existing inconsistency of look and feel in the subdivision. The requested variance is 6 feet leaving 34 feet open to the rear property line. The parcel in question abuts undeveloped agricultural land and the possibility of development of the rear parcel is speculative since the current owner has stated he has no plans to develop. Plus, the impact on future owners if the land is developed would be little or none since the prospective future owners will be able to see the enclosed porch before buying property. Standard number 2 is met because the use of residential is allowed. They believe standard number 3 is met because the special conditions of this parcel relate to the cul-de-sac curves that cut into the front yard and push the home farther back on the parcel, plus the road design presents practical difficulty. Also, the rear yard abuts undeveloped land. They believe that no other parcel in the subdivision or in the area has the same characteristics. For standard number 4 the impact of the variance is so minimal that they see no need for impact mitigation. They conclude that this standard is met. They believe that standard number 5 is met since other properties in the vicinity have sufficient space to convert their decks/porches to three season porches. They believe that standard 6 is met because the parcel is currently conforming. They believe that standard 7 is met because the new construction was begun in the mistaken belief that the new porch was in compliance with the ordinance and was being constructed pursuant to an approved building permit. They believe that the contractor’s mistake should not be held against the applicant. The following similar past variances were listed as being approved: VAR0601 on 1-25-06 for Susan Deters; VAR0411 on 12-08-04 for Brad VanderMeer; VAR0301 on 2-26-03 for Paul Johnson; VAR0305 on 5-28-03 for Joe and Joyce Weise; VAR0207 on 4-24-02 for Robert and Diane Blackmer; VAR0215 on 8-28-02 for Michale and Michelle Zink; VAR0104 on 2-28-01 for Conrad Vander Werf Builder; VAR0120 on 6-27-01 for David and Kerri Milarch; VAR9713 on 5-28-97 for Jeff and Sheri Gieske; VAR9604 on 2-28-96 for Gerald and Jody Vanderstel and VAR9620 on 6-26-06 for Complkete Exteriors. The following variances were denied but they believe that the circumstances are different: VAR0606 on 4-26-06 for Tyler Wolf; VAR0503 on 2-23-05 for James VanEden and VAR0501 on 1-26-05 for Bilot Construction. They also were appealing the zoning administrator’s decision that a three season room is part of the main structure based on the wording in the ordinance which states that an enclosed porch is totally enclosed. They said that since the three season room was not heated it was not like other rooms in the house and was not totally enclosed. In conclusion they believe that they meet the standards of the ordinance and that the three season porch is not a part of the main structure and not subject to the 40 foot rear yard setback since the room is not heated.

Dan Lennington said that although the ZBA tried to be consistent, the previous actions of the ZBA were persuasive but not binding.

The zoning administrator suggested that action take place on the appeal first since no variance would be needed if the ZBA determine to not concur with the zoning administrator’s decision that the three season room was part of the house. It if was determined to not be a part of the main structure, it would not be subject to the 40 foot rear yard setback. The zoning administrator presented a review as follows.

Request

There are two requests. One is for a variance of 6 feet to permit a three-season room (the enclosure of a deck and roof) to be located 34 feet from the rear property line when Chapter 24 requires 40 feet. The second is an appeal of the zoning administrator’s interpretation that a three-season room is part of the main structure that must adhere to the 40 foot rear yard setback.

History

On June 19, 2006, Jeff Scholten Builders Inc. applied for a building permit for the “addition of an 8/12 roof over existing 12 X 12 deck, not enclosed, PV $12,000.” (PV means property value.) The Zoning Compliance application states that they were applying for an “8/12 roof pitch with shingled roof to match existing-not enclosed.” Additional comments and notes on the Zoning Review Sheet include the fact that the person who performed the zoning review ASKED the applicant if this application for a roof over a deck was to be enclosed and was told NO. Please see the attached copies of the building permit, Zoning Compliance Certificate application and zoning review sheet.

Subsequently, when PCI went to conduct an inspection, the building inspector noted that the deck and roof included an enclosure and notified the Township since the permit specifically states that the addition was NOT to be enclosed.

When the applicant returned to the Township to change the permit, it was found that the addition would extend into the required rear yard setback for a distance of 6 feet resulting in a rear yard setback of 34 feet. Chapter 24 requires a 40 foot rear yard setback in the LDR district.

The property owners attended a meeting at the Township Office with the zoning administrator to try to remedy the situation. The zoning administrator explained the sections of the ordinance that were used for the determination that once the deck and roof were enclosed for the three-season room, the addition became part of the main structure and was subject to the 40 foot rear yard setback. While the ordinance permits a deck to extend 12 feet into a required front or rear yard, once it becomes enclosed it becomes part of the main structure.

The ZBA should also consider that at least three other similar requests were denied (excerpts of the minutes of those meetings are attached following the pictures):

1. At the April 26, 2006 meeting, the ZBA denied VAR0606 for Tyler Wolf, 8710 Lumina Court, to have a rear yard setback of 37 feet, a variance of 3 feet from the 40 feet required in Chapter 24, in a (LDR) Low Density Residential district, on a parcel of land described as P.P. # 70-14-11-205-013, located at 8710 Lumina Court, Georgetown Township, Ottawa County, Michigan.

2. At the February 23, 2005 meeting, the ZBA denied VAR0503 for James Van Eden, 2311 Pinewood Street, to have a 19.5 rear yard setback, a variance of 20.5 feet from the 40 feet required in Chapter 24, in a (LDR) Low Density Residential district, on a parcel of land described as P.P. # 70-14-10-354-016, located at 2311 Pinewood Street, Georgetown Township, Ottawa County, Michigan.

3. At the January 26, 2005 meeting, the ZBA denied VAR0501 for Bilot Construction (Ron Bilot), 3362 Ivanrest, to have a front yard setback of 29.5 feet, a variance of 10.5 feet from the 40 feet required in Chapter 24, in a (LDR) Low Density Residential district, on a parcel of land described as P.P.# 70-14-11-439-001, located at 8366 Golfside Dr., Georgetown Township, Ottawa County, Michigan

Appeal

The applicants are appealing the zoning administrator’s decision that a three-season room is part of the main structure and is subject to the 40 foot rear yard setback requirement in Chapter 24. The following sections of the ordinance were used by the zoning administrator to reach this determination:

Chapter 24 requires a 40 foot rear yard setback in a LDR district.

Chapter 24 footnote (o) states “An open porch, paved patio, deck or terrace may project into a required front or rear yard for a distance not to exceed twelve (12) feet.”

Sec. 2.81a defines an open porch as “A covered entrance to a building or structure which is unenclosed except for columns supporting the porch roof, and projects out from the main wall of said building or structure and has a separate roof or an integral roof with the principal building or structure to which it is attached.”

Sec. 2.80 defines an enclosed porch as “A covered entrance to a building or structure which is totally enclosed and projects out from the main wall of said building or structure and has a separate roof or an integral roof with the principal building or structure to which it is attached.”

Sec. 3.3(B) states that “Accessory buildings, including enclosed porches and garages, attached to a dwelling or to other main buildings shall be deemed a part of such buildings for the purpose of determine required setbacks.”

Therefore, an unenclosed deck with a roof can project 12 feet into the required rear yard setback {as per Chapter 24 footnote (o)}. The house on the subject site has a 45.9 rear yard setback and a deck that projects to a point with a 34 foot setback, which is permitted. It is even permitted with a roof over the deck according to Sec. 2.81a. However, as soon as the deck and roof are enclosed, the structure becomes part of the main structure according to Sec. 3.3 (B).

Greg Honderd asked if the room was left as it was currently constructed, which is to have walls but no windows, would it be considered to be totally enclosed or would it be allowed to remain.

The zoning administrator said that she would have to research the question and stated that if the ZBA wanted that information, the request could be tabled until that information was obtained.

Dan Lennington said that it did not make sense that an addition with a roof, windows, door, siding, and four walls would be considered not an “enclosure” as applicants have proposed. Applicants claim that the lack of heat makes it not an addition.

Christopher LaGrand said that there is some ambiguity in the words and he wanted to know where to draw the line.

Moved by Greg Honderd, seconded by Carl DeVree, to table the request until the zoning administrator could clarify what percentage they would have to keep open to determine that the room was unenclosed.

Yeas: Carl DeVree, Greg Honderd,

Nays: Joyce Weise, Dan Lennington, John Fanthorpe

MOTION DENIED.

Moved by Joyce Weise, seconded by John Fanthorpe, to concur with the zoning administrator’s determination that this three-season room (enclosed deck with roof as presented by VAR0613) is part of the main structure and is subject to the 40 foot rear yard setback in Chapter 24, based on the following findings of the wording of the ordinance as presented which is as follows:

Chapter 24 requires a 40 foot rear yard setback in a LDR district.

Chapter 24 footnote (o) states “An open porch, paved patio, deck or terrace may project into a required front or rear yard for a distance not to exceed twelve (12) feet.”

Yeas: Dan Lennington, Greg Honderd, Carl DeVree, Joyce Weise, John Fanthorpe

Nays: none

Greg Honderd asked the zoning administrator to still clarify what percentage would have to be left unenclosed for the determination to be made that it is an unenclosed porch.

Dan Lennington concurred and said that this particular finding was based on the information specific to these facts and this proposal.

John Fanthorpe said that what was constructed was not the same thing that was requested on the building permit application and was approved on the building permit.

Dan Lennington said that after reading the sections of the ordinance, he did not understand how any other interpretation could be reached other than to consider the proposal – which would include three walls, a roof, siding, windows, and a door – to be a part of the main structure. He said that if the applicant’s line of thinking was followed to consider a room not a part of the main structure if it was not heated, any room of a house or any addition could be added to a house without heat and not considered to be a part of the main structure. He asked the zoning administrator if she had consistently in the past interpreted the ordinance in the same way she had for this request and she said yes.

Dan Lennington said that they could make an argument if there was open space between a railing and the roof; however, this three season room had walls, doors, windows and everything else to be considered enclosed.

Joyce Weise asked if elevations had been provided with the building permit application.

The zoning administrator said that another person in the office had conducted the zoning review for the building permit application so she was not certain as to what had been submitted, other than the several notations on the building permit application that the deck would have a roof and not be enclosed, which is permitted under the ordinance. She said that copies of the application and review had been submitted to the ZBA members showing that the notation had been made several times, even noted on the actual building permit, that the roof and deck would not be enclosed. She said that typically for such an application a site plan with a bird’s eye view would be submitted.

John Fanthorpe presented the copies to the ZBA and noted that there were several places on the documentation for the application and on the building permit that noted that it was to be unenclosed.

Dan Lennington said that there were three spots in the application for a building permit where notations were made that the deck and roof were to be unenclosed.

Yeas: Dan Lennington, Greg Honderd, Joyce Weise, Carl DeVree, John Fanthorpe

Nays: none

MOTION CARRIED.

The chairman stated that the variance request for the 34 foot rear yard setback would be considered and he opened the public hearing. No one was present to speak on this topic. The chairman closed the public hearing.

The zoning administrator presented a review as follows.

Variance ID

VAR0613

Applicant

Ivan and Mary VanderKolk

Address

5485 Ericridge Ct.

Request

To have a 34 ft. rear yard setback, variance of 6 ft. from 40 ft. required in Chapter 24

Date

July 5, 2006

#	YES	NO	CONDITIONS (Chapter 28.11-C)
1		X	Granting the variance(s) will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.
2	X		Granting the variance shall not permit the establishment within a district of any use which is prohibited, nor shall any use variances be granted.
3		X	That there are practical difficulties in complying with the standards of the Zoning Ordinance resulting form exceptional, extraordinary, or unique circumstances or conditions applying to the property in question, that do not generally apply to other property or uses in the vicinity in the same zoning district; and have not resulted from the adoption of this Ordinance.
4			That the granting of such variance will not be of substantial detriment to adjacent properties or improvements in the vicinity; or, that the application of conditions of an approved variance will eliminate or sufficiently mitigate potential detrimental impacts.
5		X	That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.
6			That granting such variance will not cause any existing non-conforming use, structure, or condition to be increased or perpetuated, contrary to the provisions of Chapter 27 of this Ordinance, except in accordance with Section 27.12.
7		X	That the variance is not necessitated as a result of any action or inaction of the applicant.

Findings.

The determination can be made that standard 2 has been met and that standards 1, 3, 5 and 7 have not been met. The ZBA should discuss those findings and determine if they agree with the determinations. The ZBA should determine if standards 4 and 6 are met. The following is provided for information and discussion.

Standard #1 - Granting the variance will be in the public interest and will ensure that the spirit of the Ordinance shall be observed.

Not met. The spirit of the ordinance is to provide uniform setbacks for structures and buildings in the LDR district. The applicants indicate that their rear yard abuts a parcel that is zoned Agriculture. However, note the GIS map and the picture of the stub street both show that Ericridge Dr. is shown to be ready to extend to the west in preparation for future development.

Standard #2 - Granting the variance shall not permit the establishment within a district of any use, which is prohibited, nor shall any use variances be granted.

Met. The use would continue to be the same.

Not met. In fact, the subject site existed in compliance with the ordinance until the application was submitted for the construction of a roof over a deck. The property owners have the right to construct a roof over the deck in compliance with the ordinance. However, as soon as the structure is enclosed, it becomes part of the main structure and is subject to the 40 foot rear yard setback. The applicants indicate that the property is located on a cul de sac and should be allowed to project into the rear yard setback because neighboring house extend to the west (while still complying with the ordinance due to the lot configuration). However, the GIS map clearly depicts that the parcel is wider than the adjacent parcel to the south to provide additional area that is lost to the curve of the cul de sac. In addition, the cul de sac lot is not unique because most plats are developed with cul de sac lots. If this variance were to be granted, why wouldn’t every cul de sac lot be allowed to have a smaller rear yard setback?

For discussion. It does not appear that granting the variance would be a substantial detriment to adjacent properties or improvements in the vicinity at this point in time (though possibly not in the future when the adjacent parcel is developed); however, there is no legitimate reason why this property should be allowed to have a larger building that encroaches upon the rear yard setback when none of the adjacent properties are allowed the same right. Further, there are no mitigating circumstances to obstruct the view of the proposed building addition and smaller rear yard setback from the view of the adjacent properties.

Standard #5 - That granting such variance is necessary for the preservation of a substantial property right possessed by other properties in the vicinity in the same zoning district.

Not met. In fact, if the variance were to be granted, all the abutting properties could apply for smaller rear yard setbacks since there is no reason why this property should be allowed to have reduced setbacks and not the others in the vicinity. All the adjacent properties meet or exceed minimum setback requirements. The only difference is that the second house to the south is situated differently because it fronts on a street that runs perpendicular to the street the subject site is located on. The applicants indicate that other properties have the right to enclose a deck; however, others might have the opportunity to enclose their decks within their required setbacks.

Met.

Standard #7 - That the variance is not necessitated as a result of any action or inaction of the applicant.

Not met. The only reason for the variance request is simply because the applicant wants a three-season room (enclosed porch). In addition, the request was made because of the mistake made by the builder with the application for the roof which clearly states that the permit is for the roof over a deck to NOT be enclosed.

Discussion

As noted and demonstrated above, the following is provided for discussion. The spirit of the ordinance is to provide uniform setbacks for structures and buildings in the LDR district. Even though the adjacent property is currently agriculture, a stub street has already been constructed in anticipation of the development of this property some time in the future. There are no practical difficulties resulting from unique or extraordinary circumstances applying to the property. The parcel is on a cul de sac and there are numerous cul de sac lots in the Township. There is no reason that the site should not comply with the ordinance. In fact, the subject site existed in compliance with the ordinance until the application was submitted for the construction of a roof over a deck. While other properties may have addition rear yards where a deck could be enclosed and still meet the rear yard setback, other properties in the vicinity do not have the property right to have rear yard setbacks that are less than required in the ordinance. The only reason for the variance request is simply because the applicant wants a three-season room (enclosed porch) and due to the mistake made by the builder with the application and the building permit which CLEARLY stated that the deck and roof were NOT to be enclosed. In the past, the ZBA has denied similar requests including one in April of 2006 for a smaller request for Tyler Wolf, 8710 Lumina Court, to have a rear yard setback of 37 feet, a variance of 3 feet from the 40 feet.

Carl DeVree asked why the builder stated on the building permit application that the roof and deck would be unenclosed.

Ivan VanderKolk said that he has no explanation.

John Fanthorpe said that if they had constructed what they applied for, it would have met the ordinance, but what they put up did not meet the ordinance.

Ivan VanderKolk said that they thought a three season room was going up and this was a mistake by the builder.

Moved by Greg Honderd, seconded by John Fanthorpe, to deny variance (VAR0613) Ivan and Mary VanderKolk, 5485 Ericridge Ct., to have a 34 foot rear yard setback, a variance of 6 feet from the 40 feet required in Chapter 24, in a (LDR) Low Density Residential district on a parcel of land described as P.P. # 70-14-34-238-003, located at 5485 Ericridge Ct., Georgetown Township, Ottawa County, Michigan, based on the findings that the request does not meet the standards of the ordinance.

Dan Lennington stated the following. As stated at previous ZBA meetings, living on a cul de sac is not exceptional or extraordinary in and of itself. The ZBA has had front yards affected by the circumference of a cul de sac which has caused buildings to be built incorrectly by accident. The cul de sac curvature does not significantly affect the rear-yard setback in this case. Many people in the Township live on a cul de sac and build within their building envelope. This addition simply does not fit within the building envelope. It seems as though the applicant was a victim of his builder who applied for an “unenclosed” addition and now is trying to build an “enclosed” addition, which would be part of the main structure. The builder made a mistake and what he represented on the application was not accurate, resulting in the applicants suffering the consequence of the builder’s actions. Some of the approved variances presented by the applicant had different circumstances. For example, Brad Vandemeer was in a wheelchair and needed a larger garage for it to be handicapped accessible. As far as the applicant’s request for a sun room, they could enjoy the deck which meets the ordinance requirements. If this was granted, nothing would preclude others from asking for the same thing. There is no factual distinction for extraordinary or unusual circumstances other than the applicant just wants the three season room and apart from the fact that the builder made a significant mistake. For the Deter’s variance, there was a permanent easement adjacent to her rear yard for the power lines and she obtained the right to use that property from the power company. The cornfield adjacent to the subject site is slated for development sometime in the future and houses will be built there. He can’t speak for the other precedents of the ZBA which were prior to 2004; however, he knows that the ZBA cannot grant a variance unless all the seven standards of the ordinance are met. And because the ZBA determined that standard number 3 and 7 definitely are not met the variance cannot be granted. The applicants built the sun porch and now need to bring it into conformity with the ordinance. Therefore, the action was definitely necessitated by the applicant and the applicant’s builder because the house was in compliance with the ordinance prior to that time. It was the self action that necessitated the request. This is a classic example of a self-created hardship. Under these facts, standards number 7 and 3 cannot be met.

Yeas: Daniel Lennington, Greg Honderd, Joyce Weise, John Fanthorpe, Carl DeVree

Nays: none

MOTION CARRIED.

#060726-05 - Adjournment

The meeting was adjourned at 9:25 p.m.